1413440 (Refugee)

[2016] AATA 4496

1413440 (Refugee) [2016] AATA 4496 (9 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413440

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Sean Baker

DATE:9 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a)of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i)of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 09 September 2016 at 12:03pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. [The applicant] is an Egyptian citizen born in Cairo. She grew up in a middle class Sunni Muslim family. She has a Bachelor’s degree. She studied her religion in depth as a devoted Muslim. After being married and having children her religious studies slowed down until around 2011, when she started to compare different branches of Islam. She was a big supporter of women’s rights. She was supported in her research and thinking by her husband and her father. She became interested in the Quranist (also spelt Koranist) branch despite being hesitant initially to research this. She came across the founder of the Koranists, Mr Ahmed Mansour when researching on the internet and began corresponding with him. Her husband supported her in her wish to find out more. She got into heated disagreements with her [relatives] who are fanatics. Her [relative] came over one day and asked to use the applicant’s computer to send an urgent email. She had just opened the Koranist website and her [relative] discovered Mr Mansour’s name on the screen and screamed and asked her husband what was going on, her husband was hesitant to tell [the relative] what was going on, a fight broke out and they found themselves in a police station. She was scared and afraid for herself, her children and her husband. [In] December 2012 she went to a police station to respond to the charges, she denied them and was released on a surety of [amount] Egyptian pounds. Al-Alzhar considered the matter and a fatwa was issued which stated that Koranism is a doctrine that disrespects Islam and `Ahl Sunnah Wel Gamaah'. It was also recommended that her children be placed in the care of Al Azhar which was followed up by a series of legal orders and she was requested to appear before the Courts on [date]/06/2013. She applied for her visa to Australia on [date]/12/2012 which was granted shortly after. Her [relatives] started to take a hard line against the applicant and her family, especially her husband. The applicant and her husband tried to solve things and find options to live peacefully and had discussed leaving Cairo to move to another city. Therefore, the applicant took her children and herself to Australia. Applicants two, three and four are her children.

2. The delegate refused the application on the basis that the delegate did not accept that the applicant would be perceived as a Koranist nor that the applicant would be perceived as transgressing Islam, and did not accept the cascade of events that led to her being brought to the attention of the Islamic authorities, and assessed that the applicant would not face a real chance of serious harm or a real risk of significant harm for these or any other reasons. The applicant provided a copy of the delegate’s decision with her application for review.

3. A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  The issues in this review are whether any of the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Egypt and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being removed from Australia to Egypt, there is a real risk that they will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Identity and nationality

4. To the Department the applicants provided copies of their Egyptian passports. On the basis of this evidence and with no evidence to the contrary, I find that the applicants are who they claim to be and that they are nationals of Egypt, which is also their receiving country.

5. I find that applicants two, three and four are the dependent children of, and members of the family unit of, applicant one.

6. There is no evidence before me to suggest that any of the applicants have a right to enter and reside in a third country and I so find.

   The mental health of the applicant and her children

7. I have received reports about the mental health of the applicant, [Child 1], and [Child 2]. These reports indicate significant and ongoing mental health issues for the entire family, which are reported by the family members to have been precipitated by the claimed events in Egypt. On the evidence of the assessment by a psychologist following a number of sessions I accept that the applicant appears to be suffering [mental health issues], and that her children have symptoms of [mental health issues]. On the evidence of the [counsellor] and the child and adolescent psychiatrist and occupational therapist from [a health facility], I accept that [Child 1] has been admitted to the [inpatient] unit at [the health facility], and reports and is observed to suffer symptoms of [mental health issues]. The report from [the counsellor] notes that return to Egypt would precipitate a severe deterioration and place her, as a minor, at severe risk. [Child 2] is suffering from a range of [symptoms]. From evidence at hearing I understand that [Child 3] is also suffering mental health symptoms.

   [The applicant]’s claims and evidence

8. To the Department, the applicant provided a number of significant documents and their translations. These included an investigation report dated [December] 2012 with complaints against her from three of her [relatives], an investigation report by [a ministry] interviewing the applicant dated [December] 2012, an order from the prosecutor that day ordering her to pay a surety, sending the documents to Al-Azhar, and requiring an investigation by the police, a fatwa from Al-Azhar in the terms as above, a referral decree from the [head] of prosecutions referring the applicant to appear before court [in] June 2013 charged with sedition and offences against religion, as well as power of attorney documents.

   [The applicant]’s religious views and ‘conversion’ to Quranism

9. The applicant claims that she was interested in exploring Islam, and was encouraged to do so by her father and her husband, and that this led her into reading about Quranism and to her exploring the Quranist website Ahl Al Quran.

10. The Koranists/Quranists are a small Muslim group that believe the Quran is the only legitimate source of Islam, challenging the mainstream Muslim view that the Hadith – the sayings and actions of the Prophet Mohammad – is crucial to Muslim practice.[1] According to Egyptian Quranist founder Ahmed Subhy Mansour, Quranists are reformists that seek “a modern interpretation of Islam that rejects Shariah law”.[2] The International Quranic Centre, founded by Mansour, says:

    [T]he Quranic People aim to assist the peaceful reform of Muslim countries and societies by going back to the authentic source of Islam – the Quran. The Quranic People believe that reform will flow from the objective understanding of the Quran, according to its original terminology. By such careful reading, one can judge the past and present actions of Muslims in relation to the word of God alone. The Quranic people aren’t a political party or a religious sect, but rather a group of educated open-minded individuals who share the simple but profound and powerful beliefs outlined above.[3]

    [1] US Embassy Cairo 2009 , “Imprisoned  Quranist Blogger released”, 26 January on the Telegraph website – Accessed 13 April 2011; “About Us” (undated), International Quranic Centre website – Accessed 9 November 2009; El-Khashab, Karim 2007, “Matters of Faith”, Al-Ahram Weekly Online, Issue no. 852, 5-11 July – Accessed 9 November 2009.

    [2] Mansour , A.S. 2009 , ‘Egypt persecutes Muslim moderates’, The New York Times, 09 February n/23iht-edmansour.1.19632638.html?_r=1 – Accessed  10 May 2011.

    [3] “About Us” (undated), International Quranic Centre website – Accessed 9 November 2009.

11. Quranist practices differ significantly from those of Sunni Muslims who use the Hadith to inform their religious activities. It is also noteworthy that even within the Quranist community there are diverse religious practices, stemming from different interpretations of the Quran.[4] For instance, regarding prayer - divergent information was located on how often Quranists pray, with separate sources indicating Quranist pray two, three or, like Sunnis, five times a day.[5] Most Muslims, including Sunnis, use the Hadith for details on how to pray. Quranists, however, use only the Quran. The Quranist Path writes that prayer does not have to be strictly regimented, as practiced by Sunni Muslims.[6] Instead, it says “the prayer of a Quranist consists of no more than setting apart a time for God to focus on Him, bowing or kneeling”.[7] According to the website, “[m]ore than this is not required but it is not forbidden either”.[8] The Quran Alone offers a more structured form of prayer, although still based on recitations contained from the Quran.[9]

    [4] “Quranist Beliefs” (undated), Quranists.org website – Accessed 10 November 2009.

    [5] “Contact Prayer” (undated), Quran Alone websitehttp:// – Accessed 14 April 2011;“The Way We See It” (undated), Quranists.org website – Accessed 10 November 2009; “Religions: Sunni and Shia”, 2009, BBC, 19 August – Accessed 13 April 2011.

    [6]  “The Way We See It” (undated), Quranists.org website – Accessed 10 November 2009.

    [7] “The Way We See It” (undated), Quranists.org website – Accessed 10 November 2009.

    [8] “The Way We See It” (undated), Quranists.org website – Accessed 10 November 2009.

    [9]  “Contact Prayer” (undated), Quran Alone websitehttp:// – Accessed 14 April 2011.

12. DFAT has provided information on the situation for Quranists in Egypt:

    Koranists

    3.51 There is a very small number of Koranists in Egypt, thought to be less than 1000. Koranists in Egypt have no defining characteristics (i.e. their names, their dress, their jewellery) that ordinarily distinguish them from other Egyptians and they do not live in a recognisable community.

    3.52 Although Koranism is not considered a legitimate denomination of Islam in Egypt, Koranists identify themselves as Muslim, including on their national identity cards. During the Mubarak era there were a number of arrests of Koranists. DFAT is unaware of any Koranist being arrested on account of their faith since the July 2013 military intervention.

    3.53 Due to widespread societal distrust of Koranism, the majority do not reveal their religious identity and on a day-to-day basis face no discrimination on account of their faith. If a Koranist’s religious identity becomes known, DFAT assesses a Koranist would face the same level of discrimination as Shias in Egypt. This could include employment insecurity (from private sector jobs) and other forms of societal discrimination. However, such discrimination would be heavily dependent on the education levels and socio-economic situation of their neighbours. In urban middle class areas, Koranists would be unlikely to face significant harassment.

    Violence

    DFAT assesses that it would be unlikely that Koranists (even if their identity were known) would face violence in Egypt under ordinary circumstances. In rural or conservative areas of the country, the risk of violence would increase if a Koranist undertook activities that called attention to their differences with other Muslims. In middle class, urban areas, it is unlikely that Koranists would face violence in any circumstance. DFAT is not aware of any killings of Koranists.[10]

    [10] DFAT Country Report, Egypt, 28 January 2014.

13. Having spoken to her at the hearing at length about these matters I accept that she became interested in the foundations of Islamic religion and thought, and I accept that her interest led her to explore Quranism and to access the Ahl Al Quran website and post comments, and that from her interest she developed a genuine and sincere engagement with Quranism and is a Quranist as discussed above. At hearing she focused in particular on her view of women in islam and the differences from Sunni orthodoxy in Egypt. Her responses at hearing indicated a deep engagement with and some considerable thought about the issues confronting Muslims.

14. Post hearing I was provided with a letter from Dr. Ahmad Subhy Mansour, the founder of the Quranist movement in Egypt. He was granted asylum by the United States in 2002,[11] provided testimony to the US Senate Judiciary Committee,[12] and is considered a prominent activist against fundamentalism in Egypt.[13] He is President of the International Quranic center and holds and has held a variety of academic positions in Egypt and the United States. His website Ahl Al Quran contains thousands of articles, excerpts from books and commentary from Mansour and many other writers from around the Muslim world. The letter sets out that the applicant [corresponded] with Mr Mansour whilst in Egypt, telling him of her bad situation, her suffering from the family of her husband, her relatives and her neighbours, and more from the Egyptian police, of her escape to Australia and from that time she became an [activist]. He states that she was in real danger in Egypt, that she was known to local police and salafists, and if they stayed longer she would be separated from her husband and children, and noted that Dr Nasr Hamid Abou Zaid, a Quranist, had had a judgement that he was an apostate and therefore was forced to divorce his wife by the Court of Appeals in 1995. The letter noted that Quranists are officially accused of apostasy, and have suffered five waves of arrests in Egypt from 1987 to 2015, and usually accuse Quranists of despising religion. He notes that as a woman she will find it more difficult in Egypt, and once deported she will be arrested at the airport.

    [11] Slackman, M., ‘Arrests in Egypt point towards a crackdown’, The New York Times, 15 June 2007,

    [12]

    [13] Mansour, Ahmed Subhy, ‘Egypt persecutes Muslim moderates’ The New York Times, 3 February 2009,

15. The letter, on letterhead from his center, leads me to have no doubts about the veracity of this letter, and I note that the applicant wished me to speak with Dr Mansour at hearing but time did not allow it, and I place very considerable weight on this letter.

16. [Details deleted].[14] She has written a number of articles on the position of women in Islam and other issues.[15] Significantly, she has only posted articles recently but has commented on [articles], in some detail, since at least [April] 2013, prior to her departure from Egypt. Some of her articles have been read by several thousand people. I have considered whether her actions since being in Australia, that is, writing articles, has been done for the sole purpose of strengthening her claims under s.91R(3), but I find it has not. This is because she was already commenting, in some detail, as far back as at least April 2013, and because her evidence at hearing indicates that she genuinely holds these views and beliefs and I believe that the articles are a genuine expression of her held views, and as such are not captured under s.91R(3).

    [14] [Information deleted].

    [15] [Information deleted].

17. I note that Quranists, as the applicant herself maintained at hearing, would not view themselves as having ‘converted’ from the Sunni sect, seeing no distinction between Sunni and Shia and regarding themselves simply as Muslims. As the case of Dr Abu Zaid illustrates,[16] the authorities in Egypt view at least some Quranists as apostates.

    Blasphemy / Defamation of Religion

    3.14 Articles 98(f), 160 and 161 of the Egyptian Criminal Code (Law 58–1937) prohibit citizens from “ridiculing or insulting heavenly religions or inciting sectarian strife”. The law applies to all Egyptians and all recognised religions, but in practice disproportionately affects individuals accused of defaming Islam.

    3.15 Defamation of religion cases are heard in Egypt’s courts of general jurisdiction (see ‘Judiciary’, above). The Misdemeanour Courts hear the majority of these cases, as most are treated as misdemeanour charges and given fines. The Criminal Courts and Children’s Courts also have jurisdiction if the defamation charge is serious enough to potentially involve a term of imprisonment, or if the charge laid is against a minor.

    3.16 Procedures for defamation cases can vary. The Prosecutor-General has the right to arrest individuals during investigations, and there have been cases where individuals have been arrested before appearing in court. It is common for cases to last over a year, and it is relatively common for proceedings to be postponed. A range of evidence can be adduced including witness statements, comments made in social media, and confessions.

    3.17 Before 2011, few people were charged with defamation of religion and, according to local human rights contacts, those charged were usually public figures such as authors, publishers and journalists. However, since the January 2011 revolution, over 70 people have been charged and/or tried for defaming religion. The number of charges rose considerably during the Morsi Government, particularly against Christians. Since the July 2013 military intervention, the Sisi Government has continued to enforce (and even step up) measures to counter atheism, blasphemy and dissent. For example, President Sisi issued a decree in January 2015 that permits the government to ban any foreign publications it deems offensive to religion.

    3.18 In the Egyptian judicial system, members of the public can make accusations about other people directly to authorities. DFAT assesses there has been a rise in accusations of defamation of religion since 2011, partly owing to the salience of religious issues in politics and public life, both during the Morsi government and afterwards.

    3.19 Approximately 60 per cent of those accused of defamation of religion have been Muslim, while the majority of the remainder have been Christian. Most cases have arisen in Upper Egypt, followed by Cairo, and then Lower Egypt. Most Muslims accused of defaming religion are alleged to have defamed Islam. On 23 March 2015, an Egyptian appeals court upheld the conviction of a Muslim who burned a Bible outside the US Embassy – the first conviction for a Muslim charged with defaming Christianity.

    3.20 Credible human rights sources have told DFAT that those accused of blasphemy rarely have an adequate right of defence, and are generally convicted. Penalties include fines and imprisonment ranging from six months to five years. On 30 May 2015, a television presenter received a five year sentence after using his program to criticise the religious arguments of Al-Azhar preachers. DFAT is not aware of any occasions where courts have ordered seizures of property, although sources have reported cases where families have had to leave their homes due to threats received as a result of defamation cases. DFAT is not aware of any past defamation convictions being quashed, though sentences have occasionally been reduced on appeal.[17]

    [16] Reuters, ‘Nasr Abu Zayd, Who Stirred Debate on Koran, Dies at 66’ Reuters, 6 July 2010,

    [17] DFAT Country Information Report – Egypt, 24 November 2015.

1. I note that the applicant has been asked to answer charges under article 160.

2. I have found information that the Court of Cassation in Egypt can declare that an apostate will lose child custody, will be denied inheritance, and may not enter a new marriage,[18] which also appears to align with the reports in relation to Dr Zaid.

   [18] Cesari, J., The Awakening of Muslim Democracy, Cambridge University Press, 2014.

3. Having considered all of the information before me I find that the applicant is a Quranist, that she [commenting] and engaged in discussions since at least April 2013, and that she has had some discussions about the differences between Quranism and Sunni theology with a neighbour and members of her family, including her [relatives].

   Her [relative] and the complaint to the police

4. The claimed event in which her [relative] saw that she had accessed and was engaged with the Ahl Al Quran website on her laptop is implausible. After speaking to her about this at length, as well as reviewing her discussion with the delegate, I am not convinced that this event happened, or happened in the way that she has claimed. In particular I note that the police report made by her [relatives] make no mention of the discovery on her laptop.

5. However, I have had regard to her evidence, as well as the evidence of the second named applicant, which I found compelling, spontaneous and truthful. From this evidence, and taking into account all of the information before me, in particular the letter from Dr Mansour, I find that the applicant was engaged in a prolonged and serious conflict with her [relatives]. I cannot speculate how this may have originated, but I accept that, as country information makes clear, the religious was brought into the argument, and in an attempt to harm the applicant, I find that her [relatives] did make the complaint of apostasy and defamation of religion against the applicant to the police [in] December 2012. I have had regard to the finding of the delegate that document fraud is rife in Egypt, and I agree, but no examination has been made of the genuineness of the submitted documents, I note the information from DFAT that members of the public can make accusations about other people directly to authorities and that there has been a rise in this since 2011.

6. I accept that the applicant had not been formally charged at this stage, on the information in relation to the criminal process in Egypt. I accept that the next day she responded to the charges and was released on a surety of [amount] Egyptian pounds. Whilst I have some doubts, I am willing to accept that Al-Alzhar issued a fatwa which stated that Koranism is a doctrine that disrespects Islam and `Ahl Sunnah Wel Gamaah' and it was also recommended that her children be placed in the care of Al Azhar which was followed up by a series of legal orders and she was requested to appear before the Courts on [date]/06/2013. I accept that the applicant did not become concerned about the trajectory of these legal matters until into 2013 when she was then required to appear before Court. I accept her evidence at hearing that she is now being searched for by the authorities.  I have had regard to information about the operation of the legal system in Egypt and I consider it plausible that alerts would only be issued at airports once a person has been tried in a Court – and I do not consider that her ability to leave Egypt before the Court date is indicative that her story in invented or implausible.

   Consideration

   What will happen to the applicants were they to return to Egypt?

7. The information above from DFAT indicates that the prosecution of blasphemy dos not allow for an adequate right of defence. It indicates that penalties may include fines and imprisonment. It is clear from the country information that blasphemy laws in Egypt are not laws of general application but are designed, on the face of the law, to suppress religious differences and have been used often – such as in the case of Dr Zaid, to suppress and persecute those who make religious and political statements. The blasphemy law is selectively enforced for Convention reasons, being religion and imputed political opinion. The law is designed and used to suppress religious and political dissent. The question then becomes whether these laws are appropriate and adapted to achieving a legitimate objective of the State of Egypt. I do not believe they are. These laws do not protect the welfare of the citizens of Egypt, but rather are used to protect the interests of the government and the religious orthodoxy. I find that these laws are not laws of general application.

8. If the applicant returns to Egypt, on the country information from DFAT there is a very high likelihood that, not given an adequate right of defence, she would be convicted. I note that the applicant has now commenced [writing], and that her articles have been seen by thousands of people, potentially within Egypt, and there is, I believe, a strong likelihood that her writing, and her association with Dr Mansour, would be known to Egyptian authorities. Such actions, I consider on the country information relating to those recently subject to charges of blasphemy, could and reasonably may be considered to lead to significant penalties if she is found guilty, including jail time.

9. On the country information there is also the very real possibility that the applicant could be declared an apostate and have the custody of her children, the other applicants, taken from her. Whilst the country information suggests that the custody would rest with her husband, if he is also implicated in the blasphemy charges (which currently there is no evidence for), then the custody may indeed go to other members of the family. The applicants are clearly very very apprehensive of this possibility. There is not enough information before me to make firm findings on this possibility, but ultimately it is not necessary.

10. I find that if the applicant returns to Egypt, now or in the reasonably foreseeable future, there is a real chance, being one that is not remote or far-fetched, that she would be prosecuted and convicted of blasphemy and declared an apostate, which I have found is not a law of general application. On the basis of her characteristics that I have accepted, there is a strong chance that she would receive a jail sentence, which I find in the circumstances would reach the level of serious harm, as would be the psychological harm to her and her children were this to occur. Such serious harm would be systematic and discriminatory and would be for the essential and significant reasons of her religion and a political opinion imputed to her, and therefore for a Convention reason, and therefore would constitute persecution: s.91R(1). The harm originating from the State of Egypt, I find that there is no prospect of the applicant relocating internally, nor accessing state protection to protect against the harm feared. Her fear is well-founded. The applicant is a refugee.

    Conclusions

11. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

12. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that they are the children of the first named applicant and are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii)and the remaining criteria for the visa are met.

    DECISION

13. The Tribunal remits the matter for reconsideration with the following directions:

    (i) that the first named applicant satisfies s.36(2)(a)of the Migration Act; and

    (ii) that the other applicants satisfy s.36(2)(b)(i)of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Sean Baker
    Member

    
    

    ATTACHMENT A - RELEVANT LAW

14. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

15. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

16. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to 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, is unable or, owing to such fear, is unwilling to return to it.

17. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

19. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

    ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

20. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

21. If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.