AZAAF v Minister for Immigration and Citizenship
[2009] FCA 892
•19 August 2009
FEDERAL COURT OF AUSTRALIA
AZAAF v Minister for Immigration & Citizenship [2009] FCA 892
MIGRATION – appeal from orders made by Federal Magistrate dismissing appellant’s application for review of decision of Minister’s delegate refusing appellant protection visa – decision of Minister’s delegate affirmed by Refugee Review Tribunal – where appellant claimed fear of persecution for Convention reason because he was member of social groups consisting of a family of Coptic Christians with prominent members that proselytise Muslims in Egypt and Coptic Christian proselytisers of Muslims in Egypt – where appellant claimed his father, grandfather and uncle had been killed for proselytising Muslims in Egypt – whether Tribunal committed jurisdictional error by deciding that death of appellant’s grandfather and uncle did not affect appellant’s position in Egypt or by deciding that appellant’s version of his father’s death had been concocted or by failing to consider question of social group or by failing to conduct hearing in unbiased manner as evidenced by findings in relation to appellant’s father’s death and letter provided by appellant’s Priest
Held: appeal dismissed – appellant’s membership of his family did not give rise to fear of persecution for Convention reason – not necessary to determine question of social group because appellant did not belong to alleged group – no apparent bias on part of Tribunal – questioning of appellant was legitimate – no lack of reasons or evidence for Tribunal’s findings.
Abebe v The Commonwealth of Australia (1999) 197 CLR 510 discussed
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 referred to
AZAAF v Minister for Immigration & Citizenship & Another [2008] FMCA 1533 cited
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 followed
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 discussed
N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 referred to
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 discussed
NAQS v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 424 discussed
The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 referred toAZAAF v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
SAD 200 of 2008
BESANKO J
19 AUGUST 2009
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 200 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: AZAAF
Appellant
AND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
19 AUGUST 2009
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 200 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: AZAAF
Appellant
AND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE:
19 AUGUST 2009
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is an appeal from a decision of the Federal Magistrates Court: AZAAF v Minister for Immigration & Citizenship & Another [2008] FMCA 1533. On 14 November 2008, that Court made an order that the appellant’s application for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”) be dismissed.
The appellant is a national of Egypt. He arrived in Australia on a student visa on 10 May 2005, having left Cairo on 9 May 2005. On 23 June 2005, the appellant made an application for a Protection (Class XA) visa (“protection visa”). On 30 September 2005, a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs refused the appellant’s application for a protection visa. On 2 November 2005, the appellant applied to the Tribunal for a review of the delegate’s decision. On 28 January 2006, the Tribunal decided to affirm the delegate’s decision not to grant a protection visa to the appellant. The appellant made an application to the Federal Magistrates Court for constitutional writs directed to the Tribunal. By consent, the Federal Magistrates Court issued constitutional writs setting aside the Tribunal’s decision and it remitted the matter to the Tribunal to be determined according to law.
On 5 February 2008, the Tribunal (differently constituted) once again decided to affirm the decision of the delegate not to grant a protection visa to the appellant. The appellant again made an application to the Federal Magistrates Court seeking constitutional writs directed to the Tribunal and it is the decision of the Federal Magistrates Court on that application which is the subject of the appeal to this Court.
On 16 August 2007, the appellant’s agent made a detailed written submission to the Tribunal and she annexed to that submission a number of documents. In her submission, the appellant’s agent described the appellant’s claim to refugee status in the following terms:
“The applicant is a Coptic Christian from Egypt. He claims a well-founded fear of persecution owing to his religion (Coptic Christian) member of a social group (proselytiser) and imputed political opinion (anti sharia law). He is outside his country of nationality (Egypt) and is unable and unwilling to avail himself of that country’s protection.”
The Tribunal conducted a hearing on 30 November 2007. The appellant appeared before the Tribunal to give evidence and present arguments. He was accompanied by two persons who provided social and emotional support. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The Tribunal’s reasons
The Tribunal delivered detailed reasons for its decision and, in the course of those reasons, the Tribunal member summarised the appellant’s claims to refugee status as follows:
“In summary, the Applicant claims he is an Egyptian national. He claims that members of his family, particularly his father, his uncle, his grandfather, his brother, who is a monk, and himself, were ‘well known’ in the Christian Coptic church in their area for helping people who converted from Islam to Christianity, or back to Christianity after being forced to embrace Islam. He claims his uncle and grandfather were killed in direct response to their activities within the church. He claims he, his brother and father became involved with a number of individuals, some of them coming from one family, who were either converts to Christianity, or potential converts to Christianity or seeking to return to Christianity after being forced to embrace Islam. He claims these activities, coming to a head in September 2004, were centred around his father’s evidently well-known bible study sessions. He claimed that these activities led to the police and Muslim fundamentalists seriously harassing him, his brother and his father. He claims that his father was forced or felt obliged to end his Bible study sessions. He claims his brother retreated to a monastery, avoiding further arrest.”
The grounds of appeal to this Court are such that it is necessary to examine in detail the key findings and conclusions of the Tribunal.
One of the documents which accompanied the written submission made by the appellant’s agent to the Tribunal was a letter from a Father Isshaq AbdilMasseeh dated December 2006. It is convenient to refer to this letter as Father Isshaq’s letter. In the letter, Father Isshaq states that the appellant is a member of “our parish” and an Orthodox Copt. Father Isshaq states that the appellant “has observed, attended and participated in our church practices regularly” and that he had helped the Christian community in as much as he could. He states, it seems on behalf of the church, that the appellant had assisted Christians who were under “coercive conversion duress away from Christianity”. He states that, as a result of that, the appellant faced “immense problems and difficulties” and that he was detained more than once with the knowledge of the security establishment. Father Isshaq states that the appellant faced torture and harm at the hands of the security forces as well as Al Jama’at al-Islamia which had infiltrated the ranks of the security apparatus. He states that the appellant faced harm and attempts at his life by Al Jama’at al-Islamia “beyond detention both where he was narrowly rescued and taken into hiding until he managed to travel outside Egypt”. Father Isshaq states that despite having left Egypt, the appellant was still wanted by Al Jama’at al-Islamia which had issued a Fatwa against his life as well as imposing Jizya. He states that that organisation has forced his family into divulging his whereabouts and to work on bringing him back to Egypt, and, as a consequence to that, “his father died because of the torture he was subjected to where he suffered brain haemorrhage”. Father Isshaq states that the church stresses that the life of the appellant will be in grave danger should he return to Egypt “as he is strongly wanted by Al Jama’at al-Islamia which are abetted by many in the ranks of the security establishment”.
The Tribunal member made a number of observations about the letter. He said that it provided no detail as to the nature and extent of the assistance provided by the appellant or as to the church’s involvement in it. He also noted that the letter presented the appellant and his family “in a vacuum, as it were, from which the priest appears entirely quarantined, and for which he does not appear to have been obliged to account as the spiritual leader of the people assisting the ‘apostates’”.
The Tribunal member said that Father Isshaq’s letter caused him “many concerns”. The Tribunal member noted that Father Isshaq did not refer to the appellant’s father as a central figure, and yet, on the appellant’s story, he would have been a far more central figure than the appellant. The Tribunal member said that “Father Isshaq’s view of the matter is simply that the police are harassing the father (family) to get to the son”. The Tribunal member said that Father Isshaq appeared to speak from “a safe or unaffected periphery to the claimed events” whereas on the appellant’s evidence, he also was a central figure in the claimed controversy. The Tribunal member said that the appellant’s evidence, and that of a Mr Morcos, as to why the priest may have appeared in that way, lacked logic. Mr Morcos had completed a statutory declaration in which he explained some background to the situation in Egypt, addressed the attitude towards Coptic priests and commented on medical reports where a person has died following police brutality. His statutory declaration was provided to the Tribunal by the appellant.
The Tribunal member said that the appellant’s evidence about Father Isshaq and his role was “confused and selective”. The Tribunal member said that he could not understand why, if the appellant’s account was correct, Father Isshaq himself was not at risk of harm from the Muslim fundamentalists and the police. He considered that the appellant’s suggestion that the priest would keep any events to himself was implausible, and that the suggestion of Mr Morcos that he could keep his problems to himself was “somewhat fanciful”.
The Tribunal member considered a claim by the appellant that he would be severely mistreated in Egypt for reasons of imputed “political opinion” by reason of the fact that he had sought asylum in Australia. With the assistance of Mr Morcos, the appellant made reference to the Egyptian penal code. The Tribunal member said that the information provided by the appellant was “largely speculative”. The Tribunal member said that he was satisfied that the appellant was an Egyptian Coptic Christian who had been absent from Egypt for a long time. He went on to say:
“However, the applicant’s position here also depends significantly on his claimed profile as a fugitive and abetter of apostates being known, and of concern, to Egyptian authorities and to Muslim fundamentalists in that country; and it is in relation to this position that the Tribunal has very significant concerns.”
The Tribunal member referred to the fact that there was evidence before him that the appellant suffered from a psychological disorder. Later in his reasons, the Tribunal member made it clear that he accepted that the appellant had been diagnosed with depression, anxiety and sleeplessness consistent with post-traumatic stress disorder.
The Tribunal member said that he did not accept that the appellant would face a real chance of persecution in Egypt simply for being a Coptic Christian. He made the point that the appellant effectively acknowledged as much because he started his own story in 2003 with the reaction against assistance he claimed he and his family had given to certain individuals in their home village. The Tribunal member said that the appellant had not provided sufficient evidence of Coptic Christians facing persecution in Egypt just for being Coptic Christians.
The Tribunal member said that the idea of families being involved in rescuing relatives who were obliged to convert to Islam and about parishes welcoming Muslims who were curious about Christianity was “generally plausible”. The question was whether these things happened to the appellant himself.
The Tribunal member then turned to address evidence about the proselytising activities of the appellant’s grandfather and his uncle.
The Tribunal member appears to have accepted that the appellant’s grandfather was involved in the conversion, or attempted conversion, of a Muslim boy and that the boy’s family killed the appellant’s grandfather. However, the Tribunal member took the view that that event was an isolated and “individualised” matter that occurred a long time ago. He found that the appellant’s grandfather was not killed for being a Christian but rather for involving himself in the conversion of a Muslim boy. The appellant did not claim to be facing persecution because his grandfather’s killers in 1988 viewed their response as incomplete. The appellant did claim that his grandfather’s actions helped to characterise his family to local Muslims as proselytisers and friends of apostates. The Tribunal member noted that the appellant did not claim that he had been harassed before 2003-2004, when he became directly involved in “very similar activities”.
The appellant claimed that his uncle and his wife became involved in the “rescue” of a family member (his wife’s niece) and that, as a result, they came into conflict with a Muslim family. The Tribunal member said that the story of the conflict itself was generally plausible but, on the evidence, he did not accept that it escalated beyond being an individual family conflict. The Tribunal member said that he was not satisfied on the evidence before him that the appellant’s uncle died in 2001 of injuries inflicted on him either by the police or by other adversaries in relation to the conflict over the niece. He appears to have been prepared to accept that the uncle’s death may have been caused in part by the conflict, but he went on to say that he was not satisfied that his uncle’s activities had any significant bearing on the appellant’s own chance of persecution in Egypt.
The Tribunal member then considered what he called “the potential cumulative relevance of the evidence regarding the [appellant’s] grandfather and uncle”. The Tribunal member said that he was not satisfied that the appellant’s situation in Egypt was “significantly affected by his grandfather’s or uncle’s situation”.
The Tribunal member said that the appellant had not provided a consistent, plausible and credible story of the interest of the Muslin fundamentalists and the police in his father or of his father’s profile. The Tribunal member said that the appellant’s account of how his brother came to be left alone by the police and fundamentalists was “unconvincing and inconsistent”. The Tribunal member said that the appellant had given inconsistent and implausible evidence about himself during the time he remained in Egypt as a fugitive. The Tribunal member said that the appellant had given inconsistent evidence as to the kind of assistance he received in the matter of the issuing of his passport. He was “generally inconsistent” as to the extent of interest in him on the part of the authorities.
Three important findings made by the Tribunal member are as follows:
“The Tribunal does not accept on the evidence before it that Muslim fundamentalists have so infiltrated the police to a degree that endangers him for reasons of his being a Coptic Christian, so identified on his ID, or for the other reasons claimed.
Due to the Applicant’s lack of credibility in this matter, such as with his evidence about the nocturnal visits to the farm, the Tribunal does not accept that he faced or faces significant relevant harm from Muslim fundamentalists in his community.
Due to the applicant’s lack of credibility in many matters in this case, the Tribunal does not accept as factual the various constituent details in his account such as the one about the police falsely or wrongly accusing him of forging ID documents for converts to Christianity.”
The Tribunal member found that after coming to Australia the appellant did not behave like a person under the mental stress he claimed or like a person with a genuine fear of persecution.
The appellant’s father died at home in November 2006. This was between the hearing conducted by the first Tribunal and the hearing conducted by the second Tribunal. The Tribunal member said that on the evidence before him “the claimed circumstances of the applicant’s father’s death [were] concocted”.
Finally, the Tribunal member addressed the claim by the appellant that there was the potential for him to be punished for harming the reputation of Egypt simply by having lodged a protection visa application. The Tribunal member said that there was not enough evidence before him to support the claim made by the appellant that he faced a real chance of being persecuted through the implementation or invocation of the Egyptian penal code.
In his conclusions, the Tribunal member said that he took into account the appellant’s psychological disorders. Nevertheless, he concluded that the appellant was not a witness of truth. He said that he did not accept that the appellant faced a real chance of persecution in Egypt, “even cumulatively” for reasons of being a Coptic Christian, notwithstanding that his grandfather and uncle died in, or as a result of, conflicts with Muslim families. The Tribunal member concluded that the appellant did not face a real chance of Convention-related persecution in Egypt and decided to affirm the delegate’s decision not to grant a protection visa to him.
The federal magistrate’s reasons
The appellant’s application for constitutional writs directed to the Tribunal contained five grounds.
The first ground was that the Tribunal fell into jurisdictional error by ignoring relevant information concerning the deaths of the appellant’s father, grandfather and uncle. The federal magistrate examined the evidence and said in relation to the deaths of the appellant’s grandfather and uncle:
“There was nothing before the Tribunal to indicate that the deaths of either of these family relations had any consequence for the applicant himself. It is not a question of their deaths not having been considered, it is a question of the Tribunal not finding them to be matters to which significant or any weight should be attached in grounding the application for refugee status.”
The federal magistrate noted that the position with the appellant’s father was “rather more controversial”. The federal magistrate said that the matters advanced by the appellant were relevant to weight and credibility findings and did not raise matters of jurisdictional error.
The federal magistrate addressed the second and third grounds together. Those grounds were that the Tribunal failed to make findings as to the likelihood that the appellant would be persecuted as a member of a social group of “Christian proselytisers in Egypt attracting Muslim apostates” or of a social group of “a family of Christian proselytisers in Egypt attracting Muslim apostates”.
The federal magistrate noted that the Tribunal member had made a finding that the appellant did not face significant relevant harm from Muslim fundamentalists in his community. The federal magistrate noted that the appellant, on his own account, had said that his difficulties with the authorities had “come to a head” in September 2004.
The federal magistrate addressed a matter raised by the appellant, namely, that a claim which he had made to the Tribunal being that he suffered torture at the hands of the police in 2004, had not been addressed by the Tribunal. The federal magistrate said that it could not be doubted that the appellant’s account of arrest and torture in 2004 had been rejected by the Tribunal.
The federal magistrate rejected the suggestion that the “what if I am wrong” test should have been applied. He said:
“A reading of the Tribunal’s Reasons does not indicate any real doubt being entertained by the Tribunal such as would require the positing of such a test.”
The federal magistrate rejected an argument that the Tribunal had failed to ask the more fundamental question relating to the appellant’s claim for refugee status, namely, whether he faced persecution on account of his membership of the proselytisers of apostates group or proselytisers of apostates family group.
The fourth ground of the application is not relevant on the appeal before me because its rejection by the federal magistrate is not challenged on the appeal.
The fifth ground of the application was as follows:
“1. The Tribunal made a jurisdictional error by:
…1.5failing to conduct the hearing and subsequent decision-making process in an unbiased manner, as evidenced by the questioning of the applicant, and subsequent reasons for decision of the Tribunal in respect of (i) whether the applicant or his father was more likely to be the subject of persecution, and (ii) whether any credit could be given to the letter written to the Tribunal by the priest, Father Isshaq.”
The federal magistrate referred to the two matters which the appellant placed most emphasis on, namely, the way in which the Tribunal dealt with the issue of his father’s death and the conclusion it drew about the apparent immunity of Father Isshaq from persecution by the authorities. As to the latter, the federal magistrate said:
“It does not impress me as having the singular impact the Tribunal thought it had, but that is not the test here. I am not reviewing the decision on merits. I can see the issue as being a matter that properly drew the attention of the Tribunal, even if I disagree about the weight given to it.”
As to the way in which the Tribunal approached the appellant’s evidence concerning the death of his father, the federal magistrate said:
“The same can be said about what the transcript reveals of the weight the Tribunal gave to the applicant’s lack of knowledge of how long his father was held at the police station prior to his going home and dying. More weight is given to it than seems appropriate. But the matter itself is not an irrelevant consideration.”
The federal magistrate then said:
“Those matters must be seen in their cumulative impact, too, to do justice to Dr Churches’ submissions on this point but, even doing that, I do not see those matters as evidencing a failure to carry out the fact-finding task contemplated by s 425 of the Act. They were not isolated credit criticisms. Many other aspects of the applicant’s case were also rejected on credit grounds.”
The federal magistrate said that none of the five grounds of the application were made out.
Issues on the appeal
The notice of appeal contains six grounds of appeal. The fifth ground of appeal is no longer pressed by the appellant. Some of the grounds of appeal were reshaped in the appellant’s written and oral submissions.
The first ground of appeal is that the federal magistrate erred in concluding that the Tribunal’s treatment of the significance to the appellant’s claim for refugee status of the deaths of the appellant’s grandfather and uncle was not erroneous.
The findings made by the Tribunal member in relation to the activities and deaths of the appellant’s grandfather and his uncle are summarised in [17] to [19] above. His principal conclusion was that he was not satisfied that the appellant’s situation in Egypt was “significantly affected” by his grandfather’s situation or his uncle’s situation.
The federal magistrate said that there was nothing before the Tribunal to indicate that the deaths of the appellant’s grandfather and uncle had any “consequences” for the appellant.
The appellant submits that the approach of the Tribunal member involved jurisdictional error and that the federal magistrate erred in law in failing to so conclude. He referred to the well-known passage in the joint reasons for judgment of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (“Dranichnikov”) (at 394 [26]):
“At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.”
The appellant submits that the Tribunal member failed to determine at the outset whether the following particular social groups, or one of them, existed for the purposes of the Convention:
(a)a family of Coptic Christians with prominent members that proselytise Muslims in Egypt; and
(b)Coptic Christian proselytisers of Muslims in Egypt.
The Tribunal member rejected the suggestion that merely being a Coptic Christian could give rise to a well-founded fear of persecution and, as I understand it, it is not suggested that jurisdictional error arose in relation to that conclusion. The Tribunal member reached the same conclusion after he added to the appellant’s status as a Coptic Christian the activities of his grandfather and uncle. The Tribunal member also rejected the appellant’s account of his proselytising activities. As the Tribunal member said, he rejected “various constituent details of [the appellant’s] account” and he was not satisfied that the appellant faced or faces significant relevant harm from Muslim fundamentalists in his community.
As far as the two particular social groups set out in [45] above and on the assumption in relation to the group identified in (a) that the appellant is one of the prominent proselytisers, the Tribunal member approached the matter by going straight to the second question, namely, whether the appellant was a proselytiser of Muslims. He found that he was not. In those circumstances, it was not necessary for the Tribunal member to formulate and consider a precise social group because an element of each formulation is that the appellant was a proselytiser of Muslims. The Tribunal member did make a reference to whether proselytisers of Muslims in local Christian communities could face persecution by reason of those activities, but he did not directly address the first question identified by Gummow and Callinan JJ in Dranichnikov. Nevertheless, for the reasons I have given, that did not lead to jurisdictional error.
It is not clear to me whether the appellant is submitting that the Tribunal member failed to address, as an alternative to his principal claim, a claim that he feared persecution not as a result of his own activities, but as a result of his membership of his family and the activities of his grandfather and uncle. If he is making that submission, I would reject it because I think the Tribunal did address that possibility. The appellant’s own claim that his problems did not begin until 2003-2004 meant either that his family was not a relevant particular social group or, in the circumstances, membership of it did not give rise to a well-founded fear of persecution.
The second ground of appeal is linked to the first. It is that the federal magistrate erred in not concluding that the Tribunal member erred by addressing the wrong question in that the Tribunal member concluded that the appellant had not been drawn into the conflict involving his uncle and that he was not significantly affected by his grandfather’s situation or his uncle’s situation. I do not think the Tribunal member erred in approaching the matter in that way. He was saying no more than that the appellant’s membership of his family, which included his grandfather and uncle, did not give rise to a well-founded fear of persecution. That was a finding open to the Tribunal member on the evidence.
The third ground of appeal is that whilst the Tribunal member analysed the role of the appellant as a Coptic Christian and as a relative of two proselytisers, he ignored the critical issue of “whether the appellant had a well founded fear of persecution for reason of belonging to a social group, being proselytisers of [or member of a family of proselytisers of] Muslims”. It may be that the Tribunal member took the view that had the appellant established that he was a proselytiser of Muslims in his local Christian Church then he would have established a well-founded fear of persecution for reason of religion, or for reason of membership of a particular social group. The fact is that he did not pause to consider those questions because he reached the clear view that the appellant had not established the proselytising activities he alleged. The Tribunal member could have approached the matter in a different way, but I do not think the approach he adopted resulted in jurisdictional error.
This ground seemed at times, in the course of argument, to overlap with the fourth ground of appeal and, at this point, two submissions were made. The first submission was that the Tribunal member did not apply, or properly apply, what the federal magistrate referred to as the “what if I am wrong test”. The second submission was that the Tribunal member’s conclusion that the claimed circumstances surrounding the death of the appellant’s father were concocted was illogical.
The “what if I am wrong test” was discussed by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576.
“It is true 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 or 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. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”
In Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Gleeson CJ and McHugh J said (544-545 [83]-[85]):
“As Guo makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal “must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution” . However, given the nature of the prosecutor's claim, the Tribunal was entitled — indeed bound — to start its inquiry by considering her claim that she had been arrested by government officials for political reasons.
…
Once the Tribunal was unable to find that she had been arrested as claimed, her further claims of detention and rape became logically irrelevant. The Tribunal, having found that it could not rely on her evidence of arrest, was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion. The Tribunal was not bound therefore to make any express finding as to whether she had been raped. Nor given the nature of her claim and the Tribunal's finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed.”
(Citations omitted.)
I refer also to N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at 34-35 [43]-[49].
In my opinion, there are two answers to the appellant’s submission. The first is that the Tribunal member did not, it seems to me, have any real doubt about his conclusions. He found that, even making allowance for the appellant’s medical condition, he was not a witness of truth. He made the point on a number of occasions in the course of his reasons that he did not believe the appellant’s account of events and that he found particular claims made by the appellant to be inconsistent and implausible. The second answer to the appellant’s submission is that the Tribunal member did address the ultimate questions of whether the appellant faced or faces significant relevant harm from Muslim fundamentalists in his community and whether he faced a real chance of persecution in Egypt (see [19] and [22]).
The second submission in relation to grounds three and four is that it is said that the Tribunal member’s reasoning in the following passage is illogical:
“The Tribunal accepts as genuine the death certificate pertaining to the Applicant’s father. The Tribunal accepts that the Applicant’s father died at home at 49 years from a ‘brain haemorrhage’ or stroke. The Tribunal is prepared to accept in principle that a person could die hours after a serious beating from internal bleeding, for example, in the head or in the torso. On the evidence before it, the Tribunal does not accept the claim that the Applicant’s father died as a result of police brutality or that he was detained and mistreated by the police shortly before dying. On the evidence before the Tribunal, the claimed circumstances of the Applicant’s father’s death are concocted. This is to a significant extent because the Tribunal does not accept as factual the key events that led to the Applicant going into internal exile, or the circumstances in which he returned to the farm, or the facts about how he obtained his passport. The Tribunal does not accept the Applicant’s claim that the authorities adopted a stance or pattern of detaining and beating his father to get to or at him, the Applicant, or to extract information about him. The Tribunal also finds that in view of the Applicant’s overall credibility problems up to this point, it does not accept that the authorities, supposedly acting in the interests of violently angered fundamentalists, adopted a stance or pattern of detaining and beating the Applicant’s father to punish him for his own actions or to deter him from similar actions in the future.”
In connection with this submission, reference was made to NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 (“NADH”) and, in particular, to Allsop J (with whom Moore and Tamberlin JJ agreed) at 286-287 [129]-[136].
I do not think that there is anything illogical in the Tribunal member’s reasoning. In essence, the conclusion is reached that the story is concocted by the appellant because key elements of his account cannot be accepted.
The fifth ground of appeal is not pressed by the appellant.
The sixth ground of appeal is that the federal magistrate erred in failing to uphold the fifth ground of the appellant’s application for constitutional writs. That ground is set out above (at [35]). The ground focuses on the Tribunal member’s questioning of the appellant and his findings. Two particular matters are identified. They are the circumstances surrounding the death of the appellant’s father and the findings made in relation to Father Isshaq’s letter. In connection with this ground of appeal, the appellant referred to three doctrines of law each of which leads to a conclusion of jurisdictional error.
First, the appellant submitted that the conduct of the review and the findings made by the Tribunal member should lead to the conclusion that the Tribunal did not conduct the review required by the Act. The appellant referred to NAQS v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 424, a case in which Hill J reached the conclusion that the Tribunal had not conducted the review required by the Act. Without being exhaustive, features of that case which led to that conclusion were a refusal by the Tribunal member to allow the applicant to call a witness, the Tribunal member acting in a rude manner and the Tribunal member cutting the applicant off in the course of his answers and refusing to hear explanations from the applicant.
Secondly, the appellant submitted that the conduct of the review and the findings made by the Tribunal member should lead to the conclusion that the Tribunal was guilty of apprehended bias. The appellant referred to NADH at 266-285 [10]-[125], a case in which the Full Court of this Court held that the Tribunal was guilty of apprehended bias. A singular feature of that case was that a number of letters and documents were in effect put to one side by the Tribunal member as not establishing any fact without any real reasons being given for adopting that course. For example, a number of letters were dismissed by the Tribunal member as being of no weight on the grounds that they were vague or did not establish certain matters without any real reasons being given for those conclusions.
Thirdly, the appellant submitted that the Tribunal’s result was so unreasonable that the Tribunal must have proceeded under a misconception which amounted to jurisdictional error. The appellant referred to Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J and The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ.
I have read the transcript of the hearing before the Tribunal on 30 November 2007 and, of course, I have read the Tribunal’s reasons for decision carefully.
The Tribunal member’s questioning of the appellant was not at any stage rude or offensive. He gave the appellant the opportunity to answer the questions he asked. In fact, he was quite frank in telling the appellant the matters which were of concern to him. In a number of areas his questioning was persistent, but not excessively so. The Tribunal member was entitled to test the appellant’s evidence. I would not have put the emphasis the Tribunal member did on the appellant’s lack of knowledge about how long his father had been detained at the police station, but that does not bring the case anywhere near the three doctrines referred to above. The other areas where there was fairly persistent questioning by the Tribunal member were the role of Father Isshaq, the activities and death of the appellant’s father and the appellant’s nocturnal visits to his father’s farm. They were all legitimate matters for questioning.
The Tribunal member made findings about a number of matters. It cannot be said in relation to any of the findings that there is a lack of reasons or evidence or that they show a pre-conceived bias such that one of the three doctrines referred to above is engaged. Another person might have approached the matter differently but the differences are differences of weight and emphasis. Again, I would not have been disposed to have put as much weight as the Tribunal member did on the appellant’s lack of knowledge of the circumstances surrounding his father’s death and, this is a question of degree only, the appellant’s explanation as to the reasons why Father Isshaq was not subject to harassment. However, as the federal magistrate correctly concluded, these conclusions are not matters which establish jurisdictional error.
At one point in his reasons, the Tribunal member said:
“Meanwhile, none of the letters before the Tribunal that refer to the death of the Applicant’s father (e.g., Fr Isshaq’s letter, or the 14 February 2007 letter from the Botros family) add plausible, detailed information to the account of the death of the Applicant’s father. Fr Isshaq’s letter repeats the broad position of the Applicant: simply that the stroke was an after effect of police brutality. Fr Isshaq’s apparent presumption is not argued in any convincing detail. Whilst the Tribunal accepts that the Applicant’s father died in November 2006 of the medical cause identified, it gives no weight to his death in the present matter.”
(Emphasis added.)
The statement which I have emphasised is perhaps a curious observation. I think that probably what is meant by the Tribunal member is that there is no detail of the statement in the letter. That is a legitimate observation but not one, I would have thought, of great significance. In any event, it is not such as to constitute jurisdictional error.
Conclusion
The appeal must be dismissed with costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 19 August 2009
Counsel for the Appellant: Dr S C Churches Solicitor for the Appellant: Bourne Lawyers Counsel for the Respondents: Mr M Roder SC Solicitor for the Respondents: Australian Government Solicitor
Date of Hearing: 24 February 2009 Date of Judgment: 19 August 2009
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