1413759 (Refugee)

[2015] AATA 3298

1413759 (Refugee) [2015] AATA 3298 (13 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413759

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Christian Carney

DATE:13 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 13 August 2015 at 11:31am

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

BACKGROUND

1. The applicant arrived in Australia [in] April 2013 as the holder of a Tourist visa with a passport issued to him by the government of the Arab Republic of Egypt (Egypt).  He applied for a Protection visa [in] May 2013, claiming to fear persecution in Egypt for reasons of his religious beliefs and practice as a Coptic Christian.  He was interviewed by a delegate of the Minister for Immigration who accepted some but not all of his claims of past mistreatment, and, in light of the change in circumstances since his departure from Egypt, with the removal of the Muslim Brotherhood from government in July 2013 and its subsequent prescription as a terrorist organisation in Egypt, decided that the risk of him suffering harm on return was remote. 

2. The Tribunal must consider and decide whether the applicant has a well-founded fear of being persecuted in Egypt for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Egypt, there is a real risk he will suffer significant harm.  In considering these issues, the Tribunal has applied the law set out in Appendix 1.   

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence to the Department

3. In his application the Protection visa, which was prepared with the assistance of a migration agent, he was born in [Sohag], on [date] and is a Coptic Christian.  In [year] he graduated from [University] with [a] degree.  He was married [in] July 1987 and has [children].  From 1987 he and his family lived in Cairo.  Between 1984 and 2004, he worked as an [occupation] in [Cairo].  He retired in August 2004 for medical reasons, and was unemployed after 2004.  He provided a copy of numerous documents to support his claimed identity, religion, education, family membership, and police reports he made in early 2013. 

4. In a statement dated 6 May 2013, he declared that the situation for Copts in Egypt had become much worse in recent years, with the Muslim Brotherhood ruling the country and the presence of fundamentalist, extremist Salafists who are hostile to Christians.  Christian women and girls are particularly at risk.  His house was located close to a mosque where lots of Muslims go to prayer, including many Salafists, one of whom was a man named [Mr A], who lived in his apartment building.  [Mr A] has a son named [Mr B], who is a violent bully and belongs to a gang.  The police were unable to control [Mr B] as [Mr A] had a relationship with the government. 

5. After the revolution in 2011, [Mr A] and [Mr B] began to harass and assault his daughter when she left the house.  If [Mr B] saw his daughter on the street, he would try to touch her and verbally harass her and would try and make her wear a veil.  The applicant tried to contact people, including neighbours, to talk to [Mr A] about the conduct of [Mr B] but nobody would, as they were afraid of them. 

6. In early January 2013, the applicant went to [Mr A] himself and asked him to tell [Mr B] to stop assaulting his daughter, but [Mr A] laughed at him and told him that Christianity was bad and he and his family should convert to Islam.  When he told [Mr A] they would not convert, [Mr A] threatened to kidnap his daughter and that he would marry her to [Mr B], who was already married to [other] women.  [Mr A] told him that they had to convert to Islam or suffer the consequences. 

7. Around that time another young man came to ask him for permission to marry his daughter.  His daughter was happy with the proposal.  The Salafists found out about the proposal and [in] January 2013 they raided his house and destroyed the furniture and contents.  They   threatened to slaughter his daughter in front of his family if he and his family did not convert to Islam or agree to marry his daughter to [Mr B].  He went to the local police on the same day and told them what happened, but when he told the police that [Mr A] was involved, the police refused to include his name in the report.  The report stated that he did not know who the intruders were.  He claimed that ‘the man’ found out that he reported the matter to the police, and he and his gang began to follow him everywhere he went. 

8. [In] February 2013 he was driving in his car with his brother-in-law when two Salafists attacked them.  They ruined his car, his glasses and hit his brother-in-law with a big stick, and he received treatment in hospital.  He reported the incident to the police, who told him his brother-in-law had to attend the station, which he was unable to do.  His brother-in-law died [in] March 2013. 

9. When he returned home [in] February 2013, two Salafists were waiting for him outside his house, and tried to attack him with a machete.  He was able to escape with the assistance of a passer-by.  He went to his brother’s house and called his wife and told her to take the children and go to her mother’s house.  He joined them there two days later and stayed there until he came to Australia. 

10. The Salafists are looking for him and his family and if he returns they will kill him.  His family ‘live in horror’ and cannot sleep because of the threats.  He cannot relocate as [Mr A] will find him through his connections.  He cannot safely practice his religion in Egypt, as it is dangerous for Christians.  On 25 March 2013 three girls were kidnapped from the nearby Sunday school in their area.  The authorities do not protect Copts.

    Submissions of migration agent

11. By letter dated 19 August 2013 the applicant’s migration agent provided detailed written submission in support of his application, which provide extracts of and references to a number of independent information about the situation in Egypt for Coptic Christians, contending that the situation had not improved since President Morsi and the Muslim Brotherhood were removed in July 2013. 

12. By letter dated 7 November 2013 the migration agent provided a copy of two media reports of recent incidents in Egypt in which Christians had been subjected to violence and the failure of the authorities to protect Christians.   

    Interview with the delegate

13. [In] November 2013 the applicant attended an interview with the [delegate].  According to the delegate’s decision record, he told the delegate that the police reports were not accurate because the officer changed the contents because of [Mr A]’s involvement, in order to protect the applicant and his family.  His wife and children moved in with his mother-in-law and were still living with her at the time of the interview and had not experienced any further problems because they had not left that apartment.  They were living a 15 minute walk away from his apartment.  He told the delegate that he did not bring his daughter to Australia or send her away at the same time he left because, in his culture, he could not send her away by herself, and she could not travel by herself, even though she was [an adult]. 

14. His problems with [Mr A] had previously existed but they increased dramatically in January 2013.  [Mr A] would tell his wife and daughter to wear the hijab.  [Mr A] would harass his daughter on the street and touch her without her consent.  [Mr A] was involved with a group of men who kidnap Christian girls and marry them to Muslim men.  He does not personally know any family that that had happened to, but has heard stories of kidnappings from people at church but has not asked about the details of what happened or who it happened to.  He told the delegate that the reason [Mr A] had not kidnapped his daughter was because [Mr A] was hoping the applicant would change his mind and allow his daughter to marry [Mr B]. 

    Post-interview submissions

15. By letter dated 29 November 2013 the applicant’s migration agent provided detailed written submission in support of his application, and references to a number of independent information about incidents of violence against Christians in Cairo, reports of the claimed failure of the authorities to protect Christians and the current security and political conditions in Egypt.  The agent also provided the delegate with a copy of the police report made by the applicant [in] January 2013 (in Arabic with translation into English). 

    Decision by the delegate

16. In a decision dated [in] July 2014 the delegate accepted part but not all of the claims he made about the mistreatment he and his family experienced in early 2013.  The delegate accepted that he was a Coptic Christian from Cairo, but did not believe that he had provided a credible account of all of his claims because of inconsistencies between his written and oral evidence about the same matters and because he was unable to provide detailed, plausible or convincing explanations about his claims. 

17. The delegate considered it possible that he had experienced some problems with his Muslim neighbours but was not satisfied by his explanations and evidence at the interview that the problems were as serious as he claimed.  The delegate considered that he did not provide credible information or explanations to support his claims about his neighbours and Salafists targeting him and his family.  He did not provide a credible explanation as to how he knew he was being followed or that [Mr A] knew what he was doing.  He did not provide information to support his allegation that his neighbour was connected to the government, and, the delegate considered the change in government and the crackdown on the Muslim Brotherhood is ‘likely to have significantly curtailed [Mr A]’s influence if it in fact existed initially’. 

18. The delegate accepted that his apartment had been broken into in early 2013 and that he had been involved in a traffic incident that resulted in injury.  However, on the evidence before her, the delegate did not accept that his apartment was broken into by his Muslim neighbours, [Mr A] and [Mr B]; did not accept that he was attacked by Salafists while in a car with his brother-in-law; did not accept that he was attacked by Salafists or his neighbours outside his apartment; did not accept that his daughter was at risk of being kidnapped by [Mr A] and [Mr B] or Salafists and married to a Muslim; and did not accept that [Mr A] was targeting him in an attempt to convert him to Islam and marry his daughter to [Mr B].  The delegate noted that the police reports did not refer to his neighbours or any other particular person, and did not support his claimed version of events.  The delegate did not accept that the police would have omitted information from the reports, as claimed, and considered that the absence of that information indicated his claims about the involvement of his neighbours and Salafists were not true. 

19. The delegate’s decision refers to numerous independent reports about the prevailing political and security conditions in Egypt and the significant change in circumstances since the applicant’s departure from Egypt, with the removal of the Muslim Brotherhood from government in July 2013 and its subsequent prescription as a terrorist organisation in Egypt.  The delegate considered that the information from DFAT indicated the authorities were willing and able to provide protection to Copts in Egypt, that the situation for Copts in urban centres such as Cairo was relatively safe and stable and that the majority of Copts lived alongside Muslims without experiencing any harassment in their day to day lives, and that individual Christians were rarely targeted for harm, and that the risks of the applicant suffering future harm because of his religious beliefs and practice as a Christian was remote.   

    Review application

20. The applicant gave the Tribunal a copy of the delegate’s decision with his application for review. 

21. By letter dated 12 August 2014 the Tribunal advised him that it had received his application and was requesting a copy of his file from the Department.  By letter dated 3 July 2015 the Tribunal advised him that it had considered all the material before it but was unable to make a favourable decision on that information alone and invited him to give oral evidence and present arguments at a hearing on 12 August 2015 at 10:30am.  He was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  The applicant did not respond to the letter.  On 5 August 2015 and again on 11 August 2015 the Tribunal sent a text message to his mobile phone number to remind him of the hearing date and time. 

22. The applicant did not appear before the Tribunal on the day and at the time and place at which he had been scheduled to appear, nor did he contact the Tribunal about the failure to attend.  He did not nominate a person to be an authorised recipient for him.  The Tribunal finds that the invitation was sent to the last address for service provided in connection with the review.  The Tribunal is satisfied that the applicant was offered the opportunity to appear before the Tribunal but that he did not do so.  He failed to contact the Tribunal to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

    FINDINGS AND REASONS

23. The applicant claims to be a citizen of Egypt and in the absence of any evidence to the contrary the Tribunal accepts he is a national of Egypt.    

24. On the evidence before it the Tribunal accepts he is a Coptic Christian who is married with [adult] children and had lived in Cairo for the majority of the past 30 years.  He claims that if returned to Egypt he would be subjected to serious harm from his Muslim neighbours and other Salafist Muslims because of his religious beliefs and practice as a Coptic Christian, and because he is the father of an adult female Copt. 

25. As noted in Appendix 1, the mere fact a person claims to fear persecution for a particular reason does not establish either the genuineness of the alleged fear or that it is “well‑founded”, or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts.  The Tribunal is not required to make the applicant's case for him; nor is it required to accept uncritically any and all the allegations made by an applicant.  The Tribunal must determine whether the applicant before it is owed protection as set out in Appendix 1.  

26. On the evidence before it, the Tribunal is prepared to accept that the applicant’s apartment was broken into in early 2013 and that his property was damaged and that he reported that incident to the police, as indicated in the copy of the police report he provided to the Department.  On the evidence before it, the Tribunal is prepared to accept that, in early 2013, the applicant was involved in a traffic incident with his relative, as indicated in the copy of the police report he provided to the Department, that resulted in them both suffering injuries and that his relative subsequently died as a result of his injuries.  However, with regard to his claims that those incidents were caused by his Muslim neighbours and other Salafist Muslims, for reasons relating to his religion and his daughter, the Tribunal considers his claims are lacking in detail in significant respects, that there are substantial gaps in the information he provided regarding his past circumstances, and that he did not provide detailed information regarding the particular allegations or the bases for his fears for returning to Egypt. 

27. He has not provided detailed information to support his claims that he and other members of his family were subjected to harassment, mistreatment, threats or intimidation by his Muslims neighbours or other Salafists in his home area.  Nor has he provided detailed information to support his claim his neighbour, whom he fears being harmed by, is connected to the authorities and that the police would not provide him protection or respond to his complaints about the conduct of his neighbour.  He has not provided detailed information to support his claim that his adult daughter is at risk of being kidnapped by or forcibly married to his neighbour’s son, or that he or other members of his family are at risk of being kidnapped or being forcibly converted to Islam.  He has not provided detailed information about his family’s current situation, including whether his daughter has married the man who proposed to her in early 2013, or the circumstances in his home area.  Nor has he provided detailed information to support his claim that he is at risk of harm in Cairo or elsewhere in Egypt for reasons of his religious beliefs or practice. 

28. Without more evidence from or on behalf of the applicant than the evidence presently before it, the Tribunal cannot be satisfied about why he left Egypt, or whether he cannot or will not return to Egypt because he fears harm there as he claims.  If he had attended the hearing, the Tribunal would have had the opportunity to discuss his claims with him in more detail and test their veracity.  The Tribunal would have sought further information in relation to the matters raised above.  The Tribunal would have used the opportunity of the hearing to discuss these issues with the applicant and given him the opportunity to explain the particular details of what he fears would happen if he returns to Egypt now or in the reasonably foreseeable future and the reasons why it would happen.  However, it was not possible to discuss any of these issues with him because, despite being advised by the Tribunal in its letter dated 3 July 2015 that it had considered all the material before it but was unable to make a favourable decision on that information alone, he did not attend a hearing and provided no further information or evidence in support of his claims.  The Tribunal has insufficient evidence to be satisfied that the events and circumstances he raised are factual and on the evidence before it, does not accept his claims. 

29. On the evidence before it, the Tribunal is not prepared to accept that the applicant or his daughter or other relative were subjected to harm or were threatened with harm by his Muslim neighbours or other Salafist Muslims in Cairo in early 2013, or at any other time, as claimed.  On the evidence before it, the Tribunal is not prepared to accept that the applicant or his daughter or other relative moved from their home in early 2013 for the reasons claimed, or that his family members have not returned to their home for the reasons claimed.  While it is prepared to accept that his apartment was broken into in early 2013 and that his property was damaged and that he and his relative were involved in a traffic incident that caused them both to suffer injuries, on the evidence before it, the Tribunal does not accept that those incidents were caused by or were attributable to the actions of his Muslim neighbours or other Salafist Muslims, as claimed. 

1. For all of these reasons, on the evidence before it, the Tribunal does not accept there is a real chance he would suffer harm from his Muslim neighbours or other Salafist Muslims, or any other person or group, for reasons relating to his religious belief s or practice, as claimed.  Nor does it accept on the evidence before it, that there is a real chance he would suffer harm from his Muslim neighbours or other Salafist Muslims, or any other person, for reasons relating to his adult daughter and his claim that she is at risk of being kidnapped, as claimed, or by being forcibly converted to Islam.   

2. On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reasons of his race, religion, nationality, political opinion or membership of a particular social group, either now or in the reasonably foreseeable future, if he returns to Egypt.  Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason. 

3. The Tribunal has also considered the alternative criteria in regards to complementary protection and has had regard to the ‘PAM3 Refugee and Humanitarian - Complementary Protection Guidelines’.  For the same reasons as set out above, on the evidence before it, the Tribunal is unable to satisfy itself in this regard.  Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm. 

   CONCLUSIONS

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations and it finds that she does not satisfy the criterion set out in s.36(2)(a) or (aa).  There is no suggestion she satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa.  Accordingly, the applicant does not satisfy the criterion in s.36(2) for a Protection visa.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Christian Carney

   
   

   Member

   APPENDIX 1 - RELEVANT LAW

6. Section 65(1) of the Act provides that a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.  The criteria for a Protection visa are set out in s.36 of the Act.  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 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), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a Protection visa of the same class.

7. 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.

   Refugee criterion

8. 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 Refugees Convention.  Generally speaking, as a party to the Refugees Convention, Australia 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.

9. The High Court of Australia has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51. Sections 91R and 91S of the Act qualify certain aspects of Article 1A(2) for the purposes of the application of the Act and Regulations to a particular person.

10. There are four key elements to the Convention definition.  Firstly, an applicant must be outside his or her country.  Secondly, the applicant must fear persecution, which, according to s.91R(1) of the Act, must involve ‘serious harm’ and ‘systematic and discriminatory conduct’.  The expression ‘serious harm’ includes, for example, a threat to life or liberty; significant physical harassment or ill-treatment; or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2).  The High Court has said that persecution may be directed against a person as an individual or as a member of a group.  The persecution must have an official quality, in the sense that it is official, or officially tolerated or condoned or be incapable of being controlled by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.  Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Thirdly, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition: race, religion, nationality, membership of a particular social group or political opinion.  The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution.  The persecution feared need not be solely attributable to a Convention reason.  However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a).

12. Fourthly, an applicant’s fear of persecution for a Convention reason must be ‘well-founded’.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded fear’ of persecution under the Convention if they have a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason.  A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.  The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad.  Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

    Complementary protection criterion

14. 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’). 

15. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.  ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

16. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.  These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B).

    Credibility

17. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions including Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

18. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Foster J stated at 482 that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.” Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

19. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed at [25]:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

20. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), the Full Court of the Federal Court observed that “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.”  Nevertheless, as Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

21. Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998) “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”  On this point, the Tribunal also takes into account the comments of Professor Hathaway in The Law of Refugee Status" (1991, Butterworths) at pages 84-86.  Nevertheless, there is no rule that a decision-maker 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: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. 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. However, if 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. In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true: see MIMA v Rajalingam (1999) 93 FCR 220. The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191]:

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.