A v Minister for Immigration & Ethnic Affairs
[1995] FCA 107
•14 MARCH 1995
CATCHWORDS
IMMIGRATION - Refugees - application for review of decision of the Refugee Review Tribunal refusing the applicant refugee status - whether there was a failure to take into account relevant considerations - whether the applicant had a well founded fear of persecution - no question of principle.
Administrative Decisions (Judicial Review) Act1977 s 5.
"A" v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS & ANOR
No NG 854 of 1994
Lindgren J
Sydney
14 March 1995
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 854 of 1994
GENERAL DIVISION )
BETWEEN:
"A"
Applicant
AND:
MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
First RespondentPROFESSOR TSAMENYI SITTING AS THE REFUGEE REVIEW TRIBUNAL
Second Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:14 March 1995
MINUTE OF ORDERS
THE COURT:
ORDERS that the application be dismissed.
ORDERS that the applicant pay the respondents' costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 854 of 1994
GENERAL DIVISION )
BETWEEN:
"A"
Applicant
AND:
MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
First RespondentPROFESSOR TSAMENYI SITTING AS THE REFUGEE REVIEW TRIBUNAL
Second Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:14 March 1995
REASONS FOR JUDGMENT
INTRODUCTION:
The applicant applies under s 5 of the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") for review of a decision of the second respondent, the Refugee Review Tribunal established by the Migration Act 1958 (Cth) ("the Tribunal") and ("the Act") respectively, dated 19 April 1994.
The Tribunal's decision was one affirming the decision of the primary decision-maker that the applicant was not a refugee under the United Nations Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol"). The Tribunal submitted to such order as the Court might make save as to costs.
On 5 December 1994 I ordered that the time for filing by the applicant of his application be extended. I also made certain orders, for the reasons given in an unreported judgment of that date, pursuant to s 50 of the Federal Court of Australia Act 1976. These included orders that in the title to the proceedings the applicant be referred to as "A", and that his name and anything liable to identify him not be published. Care was taken by counsel on the hearing to refer to the terms of the Tribunal's Decision and Reasons for Decision in a manner which would not identify the applicant. I am also able to express my reasons without identifying him.
THE TRIBUNAL'S DECISION
The Tribunal referred to the fact that the Act incorporates into Australian law the definition of "refugee" under the Convention and the Protocol, and so for present purposes, a refugee is 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."
The applicant's case was that owing to a well-founded fear of being persecuted for reasons of political opinion he was outside the country of his nationality, and, owing to such fear, was unwilling to avail himself of the protection of that country.
According to the Tribunal's Reasons for Decision, the applicant claimed refugee status on the three grounds set out below.
Firstly, he found his country of nationality a difficult place in which to live, and was unhappy with the atmosphere of insecurity in that country as a result of fighting between it and its neighbours, a situation which was contrary to his belief that all human beings should live in peace.
Secondly, the applicant relied on a particular incident when, as a member of the armed forces of his country of nationality, he was ordered to torture a group including children. His case was that he took photographs of the torture and gave them to his brother who was a
journalist, that when the brother attempted to publish the photographs they were confiscated by the authorities, and that he (the applicant) was afraid to return to his homeland for fear that he would be arrested in connection with the photographs.
Thirdly, he feared that if he returned he would be compelled by his opposition to government policy to express his views openly and would be persecuted by the authorities in consequence.
On the appeal, the applicant accepted that the only matter which could have resulted in a positive finding for him was the second matter referred to above. In relation to this "photograph incident", the Tribunal found that the applicant's fear of persecution arising from it was not well founded, saying this:
"The Applicant admitted in evidence at the hearing that [his brother] did not disclose the source of the photographs. The Applicant was not interrogated ... in connection with the photos. Although [the applicant's brother] was investigated in connection with the photos he was not arrested. The conclusion that can reasonably be drawn is that there is no objective reason to support the Applicant's fear of arrest in connection with the photograph incident upon his return ..."
The applicant's attack on the Tribunal's decision focussed on this passage.
GROUNDS OF APPLICATION FOR ORDER OF REVIEW UNDER AD(JR) ACT
The grounds of the present application which were pressed are as follows:
"3.1The decision was an improper exercise of the power in that the first respondent failed to take into account relevant considerations, namely:
3.1.1the likelihood that the authorities would be concerned as to the taking of photographs of the interrogation of detainees;
3.1.2the likelihood that any investigation of the taking of the photographs would lead to the conclusion that it was the applicant who took them and passed them to another person; and
3.1.3that the person to whom the photographs were given was dismissed from his employment as a consequent of his attempt to publish the photographs given to him by the applicant.
3.2[not pressed].
3.3The first respondent failed to give proper genuine and realistic consideration to the merits of the applicant's case."
SUBMISSIONS
Submissions of applicant
The applicant referred to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan") as authority for the proposition that an applicant for the status of "refugee" would satisfy the definition if he showed a genuine fear founded on a "real chance" that he would be persecuted for one of the reasons referred to in the definition of "refugee" if he returned to the country of his nationality. The applicant submitted that since the Tribunal apparently accepted the applicant as creditworthy, what it recorded as its view of the photograph incident should be regarded as an explanation for a finding that there was objectively no "real chance" that the applicant would be persecuted for it if he returned. The applicant submitted that the Tribunal misapprehended the facts and so took into account what was, in the circumstances, an irrelevant matter (that the brother was not arrested) and failed to take into account a relevant matter (that the brother suffered the sanction of being forced from his employment). The applicant submitted that this misapprehension of the evidence led the Tribunal into error, citing Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 (Lee J) at 373.7, 375.8.
The applicant submitted that while it was true, as the Tribunal had found, that the brother had not disclosed the source of the photographs, the Tribunal fell into error by giving weight to the fact that the applicant had not been interrogated. The error was, according to the submission, demonstrated by the fact that the applicant had not been in the country when the authorities had been making inquiries. He submitted that in noting that the brother had not been arrested, the Tribunal had wrongly left out of account the important evidence that the authorities had wanted to know who was responsible for the taking of the photographs. The applicant submitted that it could be inferred from the
Tribunal's Reasons for Decision that the Tribunal was holding that there was "no link to the applicant" and therefore no real chance of adverse consequences to him if he were to return.
Finally, the applicant submitted that "a proper, realistic and genuine consideration of the applicant's case required an analysis of the whole of the evidence on the point" and that "to focus upon those matters identified by [the Tribunal] in the absence of the contextual evidence was to fail to give proper consideration to the applicant's case", citing Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 (Sheppard J) at 13.7, 15.6 and cases there referred to. The applicant's written submissions concluded,
"The essential point is that in failing to give the degree and quality of consideration to the applicant's case which the law requires there has been an improper exercise of the power".
and the applicant cited Minister for Immigration and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 (FCA/FC) ("Pashmforoosh").
Submissions of first respondent
The first respondent ("the respondent") submitted that although the application, in para 3.3, referred to a failure "to give proper, genuine and realistic consideration to the merits of the applicant's case", this was not an independent ground provided for in s 5 of the AD(JR) Act, and that although that expression and others like it have featured in the cases, they have been used as convenient labels for certain traditional grounds of judicial review.
The respondent submitted that it had to be borne in mind that the task of the Court is to leave to the Tribunal decisions as to the facts and to interfere only when there is an identified error of law (referring to Repatriation Commission v Thompson (1988) 9 AAR 199 (FCA/FC) at 204 cited in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FCA/FC) at 287). The respondent referred to Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 (FCA/FC) at 621 for the proposition that it is a mistake to conclude from the fact that a judge or tribunal does not refer, or does not refer in detail, to some particular aspect of a case, that it has escaped attention, and that a judge or tribunal is not to be expected to set out every consideration which has been taken into account, although usually the most significant ones will be referred to. In so far as the applicant might rely upon Pashmforoosh, the respondent pointed out that that case had been commented upon critically by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 359.
In relation to the terms of the Tribunal's finding, the respondent emphasised that the Tribunal had recorded that the reason why the applicant was afraid to return to his homeland
was that he feared that the authorities would arrest him in connection with the photographs which he had taken. The respondent drew attention to the fact that the Tribunal had observed that there was no evidence before it that freedom of speech, of the press, of peaceful assembly and of association were not being honoured by the authorities in the applicant's homeland. The Tribunal remarked that a number of organisations in that country openly express their opposition to government policy and that pro-peace organisations actively cooperate with the government in peace efforts. The respondent drew attention to the fact that the Tribunal's reasons recorded that the current peace initiatives of that government were consistent with the applicant's own political views, and concluded that there was no objective foundation for the applicant's fear of persecution in the form of arrest in connection with the photograph incident in 1988.
In summary, the respondent submitted, by reference to passages in the transcript of the proceedings before the Tribunal as well as by reference to the terms of its Reasons for Decision, that the Tribunal's decision was, relevantly, that the applicant failed because, although he had a genuine fear of something which, if it occurred, would constitute "persecution", the fear was not well-founded in the sense discussed by the High Court in Chan.
REASONS
The grounds on which the applicant is entitled to apply for an order of review in respect of the Tribunal's decision are set out in sub-s 5 (1) of the AD(JR) Act. These do not, in terms, include "failure to give proper, genuine and realistic consideration to the merits", although such a failure would surely constitute one or more of the grounds referred to in sub-s 5 (1). It seems to me appropriate to consider the applicant's case as one of "improper exercise of power" constituted by a failure to take into account relevant considerations, namely aspects of the evidence before the Tribunal as properly understood.
In my view, the Tribunal's Reasons for Decision are to be understood in the context of what transpired on the hearing. Professor Tsamenyi, who sat as the Tribunal, began by explaining to the applicant the definition of "refugee" and what the Tribunal would be looking for on the hearing. He made it clear that if he asked a question which the applicant did not understand or needed time to reflect upon, the applicant should say so, and added "I just want to understand your story so that the Tribunal can make a decision" (transcript at 2.2).
The applicant gave evidence that he arrived in Australia in July 1990 on a visitor's visa. In response to a question as to why he was not willing to return to his homeland, the
applicant said that he found it "a hard place to be" (transcript at 3.3). The Tribunal invited elaboration and the applicant said: "not [his country of Nationality] but that whole area what's happening there" and when asked for further explanation, added (the various transcriptions set out in these Reasons for Judgment repeat the typing, spelling and other errors in the transcript of the proceedings before the Tribunal),
"There's a lot of reasons of things done in the area which are out of human logic. Which are out of you know what you expect of a life." (transcript at 3.5)
The Tribunal continued to invite the applicant to give specificity to the generalised concern which he had expressed. The following exchange occurred:
"[A]If I take my government's side, it would be against my conscience, against my beliefs. Against my political opinion. I'm not sitting on the fence and doing something, towards what you believe. It gets you in trouble.
TsamenyiNow I need to understand that if you take the government's side, that would be contrary to your beliefs. What are your beliefs.
[A]That people should live in a friendly environment wherever they are, whenever they are. Be supported by others.
TsamenyiNow if you don't take the government's side right, what's the problem would that be to you. You are afriad not to take the government's side.
[A]I'm not totally free not to take the government's side but I could take the government's side and everything would be all right.
TsamenyiNow if you take the other side what would happen.
[A]I don't know. It could start with jail, end up with disappearing. I don't know where they go, what their limit would be. It depends what they do.
TsamenyiWhat do you think they would do exactly because we've got to find out what is going to happen to you. The Tribunal has to understand what exactly would happen to you because of your political position.
[A]Probably at the moment just get arrested and make sure that in that nearest future or the farthest future, I would not do anything the same or on the same level.
TsamenyiJust because you disagree the government's position. Is that why they will arrest you.
[A]I did and I will do things to change to help support what I believe is right to do.
TsamenyiWhat do you do.
[A]Well, there's all sorts of ways to do, from public awareness to specific cases of assisting our people and helping them through troubles which I believe they shouldn't go through.
TsamenyiDid you do any of this in the past before you came.
[A]Tried to.
TsamenyiWhat did you do.
[A]Took photos. Photos of the interrogated kids.
TsamenyiOK. When did that happen.
[A]On my last period in the Army.
TsamenyiThat was in 1988.
[A]It would have been 1988 yes.
TsamenyiAnd according to your claim you gave these pictures to your brother.
[A]Yes." (transcript at 3.7-4.8).
In this way, from expressing a generalised disapproval of the government of his homeland, the applicant refined his fear of persecution as being a fear that he would be arrested arising out of the particular photograph incident.
The applicant gave evidence of the circumstances in which he took the photographs. In answer to a question from Professor Tsamenyi as to what happened after he took them, the applicant gave this evidence:
"[A]I gave him [the applicant's brother] the actual negatives, not the photos and he acted according to what he thoughts. He was in the papers, he was in a position to sort of process it through and everything but as he got the stuff through procedures, they got their shebak it's their interstate security and they got hold of teh material written, written material, the photos and we got a house search and he got hassled for it and then pressured out of the newspaper which today just presently I heard is closed down.
TsamenyiWas he organising a private newspaper.
[A]It wasn't a private, it was a newspaper, a left wing newspaper." (transcript at 5.5-5.7)
The applicant gave evidence that his brother had not disclosed the source of the photographs but that he was afraid to return because the authorities might be able to trace the photographs back to him. He said that his brother had tried to publish the photographs before he (the applicant) left the country but that the security authorities had not asked him (the applicant) about the photographs although they had investigated his brother. The following exchange occurred:
"TsamenyiWas your brother arrested in connection with the photos or they just took the photos from him.
[A]No he was investigated for a while but he wasn't arrested this was inside his home. They didn't take him to anywhere, they didn't do anything to him." (transcript at 6.4)
There followed the following exchange on which the applicant relied on the appeal:
"TsamenyiAll right. You left in 1990. That's two years after you got out of the army. I just want to find out whether something happened to you in that two years. Did you get into any trouble.
[A]No. No. No.
TsamenyiOK. Why did you wait until 1990 before you left [the country of nationality] to Australia. Did something happen in 1990 which pushed you out.
[A]Yeah, yeah. That's when he tried to process the photos. That's when he tried to process the issue, get back the written material, other photos that were available to him. Just then you know it was when the whole thing got blew up." (transcript at 6.7)
The Tribunal proceeded to give the applicant the opportunity to deal with reported peace initiatives being taken by the government of his homeland and he said that if there was a peaceful environment he would not be opposed to returning but that he would not like to spend his life or have his children spend their lives living there but would like them to grow up in Australia.
The Tribunal returned to the task of elucidating the applicant's case in the following exchange:
"TsamenyiI know you've told me already but I just want to make sure I really understand the real problem why you don't want to go.
[A]Firstly the thing I did already which I don't know the situation today I asked a mate of mine to send me photos and if he could use some material of what happened and everything and he sort of told me just to get off the case and not bother about it here in Australia and there's the possibility of me getting into trouble you know, if they linked it down I am in trouble then. The other thing the way things are going knowing myself I wouldn't be able to go back and say alright from today I'm a proper ........ patriot and that's what I'm going to stand for. I'm going to stand for other things to try and support a few of my friends and the other community which I guess that's what put me in trouble. Even if I getting caught, if they found it is wrong what I'm doing.
TsamenyiWhat kind of trouble? Being in trouble can mean a whole lot of things.
[A]Sorry.
TsamenyiBeing in trouble can mean a whole lot of things what exactly or what you think would be the trouble.
[A]Its ah...again it depends on what I do, you know, getting a....I don't want to live where the, you know the interstate security do after arrest, you know they, after you. Your job, whatever you do, they are there. They've got your past, they've got your record, they've got your willingness to change and they've just for the first offence, it's probably arrest and I don't know for how long. I don't know for and what the law is. ...
TsamenyiAnything else. Any other reason. I just want to make sure I really, we've taken into account all your reasons. Basically what you say the first one is the photo incident. Because of your opposition to the way the government was treating [a particular group], you took some photos and you gave these to your brother with some story and your brother attempted to publish these. He got into trouble with security agents. You are afraid when you go back you could be investigated, you could be investigated, you could be linked to this incident.
[A]Maybe there already was one. I don't know." (transcript at 9.5-10.2)
Finally, the Tribunal gave the applicant the opportunity to add anything and he indicated that he did not wish to do so.
Perhaps it suffices to say that in my view the Tribunal was entitled, on this evidence, to conclude, as it did, that the applicant had not established that the fear of persecution on which he relied, namely his fear of arrest arising out of the photograph incident, was well founded.
The applicant submitted that the Tribunal's reference to his not having been investigated in connection with the photos shows that the Tribunal inferred that the authorities were not interested in him, whereas in truth he was in Australia by that time. But the applicant's evidence was clearly that his brother tried to publish the photographs before the applicant left his homeland (transcript at 6.2). It is true that the applicant's evidence did not make clear how long before his departure this was or otherwise make clear whether investigation of him by the authorities before he left was reasonably to be expected. But the Tribunal was entitled to rely on the applicant's evidence as far as it went. This was that his brother had tried to publish the photographs at some time in 1990 before the applicant left for Australia in that year, that the identity of the applicant as the source of the photographs had not been revealed by his brother, and that before he left he was not questioned by security authorities about the photographs. This evidence either suggested that the applicant's fear of being persecuted if he returned was not well founded or at least indicated how far short the applicant fell of proving that it was well founded.
The applicant submitted that the Tribunal's reference to his brother's having been investigated but not arrested indicates that it had erroneously formed the view that all that happened to the brother was that he was investigated. The applicant referred to his evidence that the brother had been "hassled for it and then pressured out of the newspaper" (transcript at 5.7) and requested to disclose the source of the photographs, and that he (the applicant) had left the country to let matters cool down, apparently at the time when the brother was being investigated. It seems to me that the applicant's attack on the Tribunal's reasons in this respect amounts to a criticism of it for failing to select, and describe in a way which maximises the impact of, those parts of the applicant's evidence which most favoured him. I do not infer from the omission of any express reference to it, that the Tribunal was unmindful of the fact that the applicant's brother had been forced out of employment. Indeed, the Tribunal actually questioned the applicant about the brother having been "sacked
from his job" (transcript at 6.1).
The applicant's evidence seems to have been that when his brother attempted to use the photographs in 1990 and investigation of him was taking place, the applicant was advised (perhaps by friends) to leave the country until things cooled down and he did so. The applicant's having left the country in those circumstances is, no doubt, evidence that he had a genuine fear, but the Tribunal decided against him on a different basis namely that his fear was not well-founded. I do not think that the evidence, even when analysed and summarised in the way in which the applicant would prefer, was sufficient to support a conclusion that the applicant's fear of persecution was shown to be well-founded.
CONCLUSION
In the result, the application will be dismissed with costs.
I certify that this and the preceding 17 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.
Associate:
Dated:14 March 1995
Heard: 23 February 1995
Place: Sydney
Decision: 14 March 1995
Appearances: Mr G Craddock of counsel instructed by Messrs Perry & Smith, solicitors appeared for the applicant.
Mr S Gageler of counsel instructed by The Australian Government Solicitor appeared for the respondents.
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