Chemaly, Yolla Majid v Minister for Immigration and Multicultural Affairs
[1998] FCA 1403
•26 OCTOBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – Application for review of decision by the Refugee Review Tribunal refusing grant of a protection visa - whether Tribunal bound to make further inquiries – whether there was a ‘logical flaw’ in the Tribunal’s reasoning.
Migration Act 1958 (Cth), ss 5 (1), 36 (2), 420 (2)(b), 476(1)(a), 476(4)(b), 476(1)(e), s 476 (1)(g)
Kharroubi v Minister for Immigration and Multicultural Affairs (unreported, O’Connor J, 3 August 1998), cited
Luu v Renevier (1989) 91 ALR 39, cited
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, cited
Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375, cited
Navaratne v Minister for Immigration and Multicultural Affairs (unreported, Tamberlin J, 1 August 1997), followed
Nilufer Demir v Minister for Immigration and Multicultural Affairs (unreported, Ryan J, 19 October 1998), cited
Tickner v Bropho (1993) 40 FCR 183, cited
Sivalingam v Minister for Immigration and Multicultural Affairs (unreported, Sundberg J, 24 December 1998), cited
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, followed
Thevanathan v Minister for Immigration and Multicultural Affairs (unreported, Sundberg J, 24 December 1997), cited
YOLLA MAJID CHEMALY v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
NG 528 of 1998
SACKVILLE J.
SYDNEY
26 OCTOBER, 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 528 of 1998
BETWEEN:
YOLLA MAJID CHEMALY
APPLICANTAND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
RESPONDENT
JUDGE:
SACKVILLE J
DATE:
26 OCTOBER 1998
PLACE:
SYDNEY
THE COURT ORDERS THAT:
The Application be dismissed.
The decision of the Refugee Review Tribunal made on 5 May 1998 be affirmed.
The Applicant pay the Respondent’s 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
NG 528 of 1998
BETWEEN:
YOLLA MAJID CHEMALY
APPLICANTAND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
RESPONDENT
JUDGE:
SACKVILLE J
DATE:
26 OCTOBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Proceedings
This is an application to review a decision of the Refugee Review Tribunal (“RRT”), made on 5 May 1998. The RRT affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa. A criterion for the grant of a protection visa is that, at the time of the decision, the Minister (or, on review, the RRT) is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees: Migration Act 1958 (Cth) (“Migration Act”), ss 5(1) and 36(2).
The applicant is a citizen of Lebanon. She arrived in Australia on 21 December 1996, and lodged an application for a protection visa on 18 March 1997. She is a Christian and (as the RRT found) was a supporter of General Aoun, the exiled former Prime Minister of Lebanon.
The applicant alleged that, as a supporter of General Aoun, she was at risk of arrest and torture in Lebanon. She also claimed that, whilst in Lebanon, she had become engaged to a man who, unbeknown to her, was a Syrian Intelligence officer. The applicant said that the man had assaulted her while they were engaged and after she had terminated their relationship. She claimed that the man acted violently towards her because of her links with Aounists. She said that she had been unable to obtain the protection of the Lebanese authorities because of her former fiancé’s Syrian connections. On the basis of these claims, she contended that she had a well-founded fear of being persecuted for reasons of political opinion or for reasons of her membership of a particular social group, namely, those Lebanese having a close relationship with Syrian Intelligence officers.
The RRT rejected the applicant’s claim. She now seeks review of the RRT’s decision under s 476(1) of the Migration Act. She relies specifically on the grounds in s 476 (1)(a) (failure to observe procedures required by the Migration Act) and s 476(1)(g) (no evidence or other material to justify the making of the decision).
The RRT Decision
The RRT set out in some detail the claims made by the applicant in her written submissions and oral evidence. It then stated that the applicant’s claim that she had a well-founded fear of persecution on Convention grounds rested on six propositions, as follows:
“1. She is an Aounist;
2.Aounists are persecuted in Lebanon today;
3.She had become engaged by mistake to a Syrian who was a member of the Syrian intelligence;
4.This person had begun assaulting her;
5.She had broken off the relationship but because of her Aounist work and her knowledge of his alleged intelligence work he had continued assaulting her.
6.She could not obtain the protection of the authorities because of his alleged Syrian connections.”
The RRT’s findings and the substance (although not the entirety) of its reasoning are contained in the following extract:
“I accept some of these claims but since others lack consistency and are inconsistent with independent information, the totality of her evidence leave me unsatisfied that she is owed protection under the Convention in Australia.
I accept that the applicant’s family had Aounist sympathies and that the applicant herself was a committed Aounist who had attended rallies in support of General Aoun at the presidential palace in Ba’abda in 1990 and had attended other meetings and taken part in low-level activities such as distributing leaflets. On her evidence, this was the sum of her Aounist activities before and after 1990. After 1990 her activities appear to have been considerably scaled down since she had only attended five meetings between 1990 and 1996. Independent information suggests that someone such as the application, who on her own evidence took part in ‘ordinary [Aounist] activities’ and was not involved in big decisions, has nothing to fear:
In 1992 Aounists campaigned for a boycott of the national elections and a few score of them were arrested briefly for posting up seditious boycott pamphlets. In April 1993 nine Aounists in the army were sentenced to 10-year terms for illegal possession of explosives and damaging government property following the death of another army officer who had blown himself up while assembling an explosive in an apparent attempt to sabotage an army installation. In its annual summary of Lebanon’s human rights record for 1996, Amnesty International reported, of incidents involving Aounists, that several had been detained briefly or overnight and released without charge, mostly over campaigning for an election boycott.
Otherwise, generally speaking, the Department of Foreign Affairs advises that even vocal critics of the Syrian presence or of the Lebanese Government are not necessarily at risk because of their political views: “We have seen no evidence to indicate a policy of harassment of individuals solely on the basis of their being Aoun supports. Indeed, Aoun supports frequently appear in the media – interviews with Aoun himself appear regularly. His portrait adorns almost every drawing room in Jounieh”.
The Aounist movement is now an official organisation called the Congress National Libanais which has a well-staffed office in Beirut from which it directs its political activities. It regularly criticises government policy without being harmed. Well-known Aounist candidates have run in elections for several professional organisations.
The US State Department mentions no arrests of Aounists in 1997 in its annual roundup of human rights abuses in Lebanon.’
Sources: Lebanon/The Middle East and North Africa, Europa Publications 1997; DFAT cable O.DM 39671, 1993; Amnesty International Report 1977 [sic – 1997] on human rights abuses in 1996; update on Aounists from DIRB, Canada, 31/1/96, LBN22897.E, REFINFO, US State Department Country Reports on Human Rights Practices for 1997 N97/16871. [Note: The indented passage is not a quotation, but a summary, apparently of the sources cited by the RRT.]
On the independent information quoted above, the applicant, as an ordinary low-level Aounist who on her own evidence had only attended five meetings between 1990-1996, would not be harmed simply because of her Aounist sympathies.
I have considered whether an apparent coup plot by army officers in 1994 might have caused her to be regarded with suspicion. I have found no mention of such a plot in 1994 in the Tribunal’s library holdings. If it existed, the applicant, on her own evidence, would not have know of it since she said she had not been involved in big decisions. When the applicant was asked what the relevance of this claimed 1994 plot was to her case, she evaded response. I am of the opinion that this alleged plot is of no relevance to her case and would not have been a factor in any harassment of her by her former fiancé.
This brings me to the issue of whether the mistreatment the applicant suffered was at Syrian hands, for political reasons. I am of the opinion that her claim to have become engaged by mistake to a Syrian who was a member of Syrian intelligence lacks credibility. It is not plausible that a politically aware person whose strength of feeling against the Syrians was such that she was one of the ‘[t]housands of Aoun admirers [who] flocked to protect the saviour-general with a human shield when the Syrians advanced on his Ba’abda Palace headquarters…in 1990’ (Waiting for Salvation, by Joseph Mattar, The Jerusalem Report 6/5/93, CX6774) would have lacked the personal political knowledge or the political connections not to be aware that she was consorting with a Syrian, not a Lebanese – and a Syrian agent at that. Her claimed ignorance of his background is at odds with her evidence that he was related to a close friend of hers; I consider that if he was related to a close friend of hers, she would have known was his background was. Furthermore, if the applicant’s brother had friends among the former Lebanese Forces militia (which, like the Aounists are opposed to the Syrian presence) who believed that the fiancé was a Syrian, perhaps a Syrian agent, I do not consider it credible that they or other LF supporters would have withheld the knowledge from her for 10 months, until her brother happened to visit. Neither do I accept that the applicant’s family and traditional village community would have accepted without disquiet a man about whom little was apparently known except that he was a trainer in an athletics club. Yet there was nothing in the applicant’s evidence to show that there had been any questions asked, or any disquiet about her engagement to this man. It is not credible, given all these reasons, that the applicant would only apparently realise that her fiancé was a Syrian agent 10 months after her engagement, when her brother happened to hear the fiancé’s background from his friends. I accept that the application had become engaged, but for all these reasons given above, I do not consider it plausible that she had been unknowingly engaged for 10 months to a Syrian agent.
I accept the claim that the applicant had been assaulted on several occasions by her former fiancé but I do not accept, given the independent information quoted above and the applicant’s own evidence on her limited work for the Aounist movement, that the assaults were caused by her political beliefs, i.e. low-level Aounist involvement. Neither do I accept, as said previously, her claim to have become engaged by mistake to a Syrian intelligence agent to be plausible. I am of the opinion that the assaults on her were caused by personal reasons for revenge, because she broke off her engagement, not for a Convention reason.
As I do not accept that the former fiancé was a Syrian intelligence agent or that his assaults on her were for political reasons I do not need to study the solicitor’s suggestion that the applicant was in a particular social group of women at risk of persecution because of their involvement with Syrian agents or that the authorities would ignore her request for protection.
In sum, I find that the applicant’s evidence lacked credibility and am of the opinion that she has fabricated a story of being mistreated by a Syrian intelligence agent in order to substantiate her application for protection in Australia. The unexplained inconsistency about whether she broke off her engagement before being assaulted at the convent or after is largely immaterial to this finding, but it strengthens my opinion that her story is largely fabricated. I accept that she was assaulted by her former fiancé but I am not satisfied that these assaults were for reason of her political beliefs. I am not satisfied, for all these reasons, that the applicant'’ fear of persecution is for a Convention ground and that she is owed protection in Australia.”
For these reasons, the RRT was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention. Accordingly, she did not satisfy the criterion set out in s 36(2) of the Migration Act for the grant of a protection visa.
The Applicant’s Contentions
Mr Bromwich, who appeared on behalf of the applicant and put her case with commendable conciseness, noted that of the six propositions put forward by the applicant the RRT accepted only the first (that she was a supporter of General Aoun) and the fourth (that her fiancé had assaulted her). The RRT had acknowledged some mistreatment of Aounists, but had rejected the applicant’s claim that a supporter at her level was at any risk of persecution. Mr Bromwich put the applicant’s challenge to the findings of the RRT on two bases.
First, he argued that the RRT had erred in rejecting the applicant’s contention that she was at risk of persecution by reason of her Aounist affiliations. The error arose because the RRT had relied on the independent reports assessing the position of Aounists in Lebanon, but had failed to take account of a report prepared by Amnesty International in October 1997 (the “Amnesty Report”). This report described, inter alia, patterns of political detention and imprisonment in Lebanon and, according to Mr Bromwich, contained information at odds with the sources quoted in the RRT’s reasons. By failing to make a “rudimentary inquiry” (that is, searching for the Amnesty Report on the internet), the RRT’s decision lacked the “substantial justice” required by s 420(2)(b) of the Migration Act and was reviewable under s 476(1)(a) of the Act.
Secondly, Mr Bromwich submitted that the RRT had erred in rejecting the applicant’s claim that she had been engaged to a member of Syrian Intelligence who had assaulted her by reason of her Aounist connections. The RRT’s reasoning process was flawed because it was founded on an assumption that she must have known her fiancé’s background sufficiently to have realised his connections with Syrian intelligence. That assumption rested on a logical fallacy and was “irrational”. The finding that the applicant had not become engaged to a member of Syrian Intelligence was therefore liable to be set aside.
Duty to Inquire
Mr Bromwich supported the applicant’s submission, that the RRT’s failure to ascertain the existence of the Amnesty International report constituted a reviewable error, by relying on the judgment of Wilcox J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 (FC). His Honour said this (at 548):
“It is now established that a failure by a decision-maker to obtain important information, on a central issue for determination, that the decision-maker knows to be readily available may result in the decision being branded an exercise of power so unreasonable that no unreasonable person could so exercise the power: see Prasad v Minister for Immigration and Ethnics Affairs (1985) 6 FCR 155, at 169; Luu v Renevier (1989) 91 ALR 39, at 50; and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, at 290. Because of the exclusion effected by s 476(2)(b) of the Migration Act, the decision is not judicially-reviewable on the ground of manifest unreasonableness, but [Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300] establishes [that] this circumstance does not exclude the application to it of any ground listed in s 476(1).”
The High Court has granted special leave to appeal in Eshetu. However, for the purposes of the present proceedings, I accept that the extract from Wilcox J’s judgment, with which Burchett J agreed (at 554), correctly states the law.
It is important to appreciate, as Mr Bromwich accepted, that the RRT is not under a general obligation to search for all information that might bear on the issues in a case. As Wilcox J acknowledged in Sun, the duty of the Tribunal to make inquiries on its own initiative is a limited one. The obligation arises where the decision-maker is able to obtain important information on a central issue which he or she knows is readily available. The limited nature of the duty is reinforced by the observations made in the joint judgment of Black CJ, von Doussa, Sundberg and Mansfield JJ in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 (FC). Their Honours noted (at 561) that the circumstances in which the RRT “could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act”.
In the present case, the RRT referred to a number of reports dealing with the position in Lebanon of supporters of General Aoun. These included a report prepared by Amnesty International itself in 1997. The reports to which the RRT referred in its reasons were not out of date since they covered the position in Lebanon up to and including 1997. It was not suggested that the RRT misstated the effect of the reports. Nor was it suggested that the RRT Member was aware of the later Amnesty Report, but chose to ignore it.
In these circumstances, in my opinion, the RRT was not obliged to search for further reports that might have had a bearing on the position of Aounists in Lebanon. Unlike Sun, for example, this was not a case where the RRT failed to obtain readily available information that would have been likely to provide confirmation of the veracity of the applicant’s account of events. See also Luu v Renevier, at 50 (where the decision-maker had failed to obtain medical opinions from treating doctors on the likelihood of the applicant offending again); Tickner v Bropho (1993) 40 FCR 183 (FC), at 197-199, per Black CJ (Minister failed to obtain readily available information on the status of development proposals under State law in relation to a claim for protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth); Nilufer Demir v Minister for Immigration and Multicultural Affairs (unreported, 19 October 1998, Ryan J) (failure by RRT to make inquiries about the authenticity of what was said to be a Turkish arrest warrant, where the RRT found that the applicant was not wanted for offences in Turkey). In the present case, the Amnesty Report was one of a number of reports analysing the treatment in Lebanon of supporters of General Aoun.
I accept, as Mr Bromwich submitted, that there may be circumstances in which a decision-maker is obliged to make inquiries to up-date material which is obviously out-dated or very likely to have been overtaken by events. An illustration is Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375 (FC), where the Court held that the terms of a report from the Department of Foreign Affairs should have led the decision-maker to seek more up-to-date information: see at 250, per Sheppard J, with whom Black CJ and Lockhart J agreed. But I do not think that this is such a case. As I have noted, the reports relied on by the RRT were not out of date. It was not suggested that there was anything in the reports before the RRT or other circumstances that should have alerted the RRT to a recent change of circumstances in Lebanon that warranted further investigation. There was therefore nothing to suggest the need for any inquiries beyond those in fact undertaken by the RRT.
In any event, I do not think it correct to say that the contents of the Amnesty Report directly contradict the other reports relied on by the RRT. Those reports acknowledged the arrest in 1992 of supporters of General Aoun and also referred to the fact that some Aounists had been sentenced to long prison terms in 1993. The earlier Amnesty International report cited by the RRT, so I infer, described the detention in 1996 of Aounists who had campaigned for an election boycott. The Amnesty Report on which the applicant relied referred to the arrest of hundreds of people “believed to be supporters of General Michel Aoun” between 1991 and 1994. The Amnesty Report suggested that most had been “allegedly tortured or ill-treated”, although it also said that most had been released without charge. The Amnesty Report detailed other examples of persons arrested in Lebanon simply because they were exercising their right to freedom of expression, but gave no examples of Aounists who had been arrested after 1994. In my view, the Amnesty Report, although recounting allegations of torture or ill-treatment of Aounists between 1991 and 1994, is not inconsistent with the conclusion reached by the RRT, namely that Aoun supporters having a limited degree of involvement in political activity were not at risk of mistreatment in 1998.
For these reasons I reject the contention that the RRT was bound to make inquiries concerning the existence of the Amnesty Report.
The Applicant’s Credit
The RRT found that the applicant’s account of her mistreatment by the Syrian Intelligence officer lacked credibility and had been fabricated. Mr Bromwich attacked this finding on the ground that it was based on an a priori reasoning, containing a logical fallacy. The RRT had simply assumed that a person such as the applicant could not have overlooked the fact that her fiancé was a member of the intelligence service of a foreign power. That assumption was flawed. After all, the very point of covert activities is to keep them secret.
I think the difficulty with the applicant’s submission is that the RRT did not base its findings merely on an a priori assumption that it was not possible for a person to be engaged to someone without being aware that the latter was an agent of another country. The RRT took into account the applicant’s own evidence that her fiancé was related to a close friend of hers and that her brother had friends who had become aware of her fiancé’s role as a Syrian intelligence officer. The RRT also relied upon the failure of the applicant to make any inquiries about her fiancé’s background during a period of at least ten months. It was these considerations, amongst others, that led the RRT to reject her evidence.
It must also be remembered that the RRT, earlier in its reasons, had pointed out that the applicant had been unable to explain a serious inconsistency in her evidence. She had said at one point that she had broken off her engagement because her fiancé had come to the convent where she had worked and had assaulted her in front of her students. In a statutory declaration, however, she said that she had broken off her engagement before the incident at the convent. The RRT was entitled to take into account this inconsistency in assessing the applicant’s credibility.
The RRT was also entitled to take into account the applicant’s demeanour in giving her evidence. In Navaratne v Minister for Immigration and Multicultural Affairs, (unreported, 1 August 1997, Tamberlin J) the following comments were made (at 7):
“The credibility of an applicant is largely a matter of impression. There is no reason, in principle, why the observations of the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179, as to the disadvantage of an appellate body in considering credibility findings should not apply in respect of review applications to this Court under s 476 of the Act. The oft-cited remarks of the Court as to the ‘subtle influence of demeanour’ are especially important in migration cases where many of an applicant’s assertions must be accepted at face value in the absence of any evidence to the contrary. Inevitably, a great deal must depend on the demeanour as well as the consistency of the evidence of an applicant in testifying as to specific critical facts that are incapable of being independently verified. For these reasons it will often be difficult to persuade this Court on a review application to set aside findings by an administrative decision-maker on credibility questions.”
These observations have been approved in later cases: Thevanathan v Minister for Immigration and Multicultural Affairs (unreported, 24 December 1997, Sundberg J); Sivalingam v Minister for Immigration and Multicultural Affairs (unreported, 5 March 1998, Goldberg J); Kharroubi v Minister for Immigration and Multicultural Affairs, (unreported, 3 March 1998, O’Connor J).
In the present case the RRT had the opportunity to observe the applicant giving her evidence. It specifically found that aspects (although not all aspects) of her account lacked credibility. The RRT took into account, as it was entitled to do, its impression of her as a witness.
In my view, the RRT committed no error of law in making the critical findings of fact. In essence, the applicant wishes to dispute the RRT’s factual findings. This course is not open to her.
A Further Submission
Mr Braham, on behalf of the Minister, submitted that, even if the applicant’s complaints about the RRT’s findings of fact were well-founded, it was not open to her to rely on s 476 (1)(f) of the Migration Act. This conclusion was said to flow from s 476(b) of the Migration Act, which provides as follows:
“(4) The ground specified in paragraph (1)(g) is not to be taken as having been made out unless:
(a)…; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
Mr Braham contended that the effect of s 476(4)(b) was that the applicant would not succeed unless she adduced admissible evidence on the application for review demonstrating that she was in fact engaged to a Syrian Intelligence Officer.
In view of the conclusions I have reached, it is not necessary to address this submission.
Conclusion
The applicant’s challenge to the decision of the RRT fails. The RRT’s decision should be affirmed. The applicant must pay the Minister’s costs.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville
Associate:
Dated: 26 October 1998
Counsel for the Applicant: Mr R Bromwich Solicitor for the Applicant: James Coelho Counsel for the Respondent: Mr P Braham Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 October, 1998 Date of Judgment: 26 October, 1998
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