F a S v Minister for Immigration and Multicultural Affairs

[1999] FCA 561

FEDERAL COURT OF AUSTRALIA

F A S v Minister for Immigration & Multicultural Affairs [1999] FCA 561

F A S v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 164 of 1999

JUDGE:         WHITLAM J
PLACE:         SYDNEY
DATE:           6 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 164 OF 1999

BETWEEN:	F A S Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WHITLAM J
DATE OF ORDER:	6 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.In the reasons for judgment and order published today only the initials of the applicant’s name be used in the title of the proceeding.

2.The application is dismissed with 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	N 164 OF 1999

BETWEEN:	F A S Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WHITLAM J
DATE:	6 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 (“the Act”) to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 February 1999.  The Tribunal affirmed the decision of the respondent’s delegate refusing to grant the applicant a protection visa.

2. The Tribunal acceded to a request by the applicant that it not publish the statement of its reasons for decision.  The applicant is concerned that the fact that he has made application for a protection visa should not come to the attention of the authorities in the country of his nationality.  Since judgments of the Court are routinely placed on the Internet, I am asked to ensure that my reasons do not refer to the applicant by name or to such “identifiers” as his country of nationality, his ethnic group, his religion or his workplace.  I am not satisfied that, in the circumstances of this case, an order restricting the publication of either particular evidence or the name of the applicant is required in order to prevent prejudice to the administration of justice.  However, there being no opposition by the respondent, I am content that these reasons for judgment should be headed by using only the initials of the applicant’s name in the title of the proceeding.  Otherwise I have not found it necessary to refer to the applicant by name or to very specific details of the suggested “identifiers”.

3. The applicant arrived in Australia without a visa on 17 May 1998.  He was refused immigration clearance and has been held in detention since that time.  The applicant applied for a protection visa with the assistance of a migration agent employed by Refugee Advice and Casework Service (Australia) Inc.  (That agent has asisted him at all subsequent stages with his visa application and with his present application to the Court.)  On 23 June 1998 the respondent’s delegate refused to grant a protection visa.  An application for review was made to the Tribunal, and the applicant gave evidence before the Tribunal on 30 July 1998.  Extensive correspondence followed between the applicant’s agent and the Tribunal.  It will be necessary later to refer to some of this material in detail.  The Tribunal received the applicant’s final submissions on 31 January 1999.

4. The Tribunal’s reasons for decision comprise forty-six pages.  They appear on their face to deal with the applicant’s claims comprehensively and in considerable detail.  The applicant had claimed Australia’s protection under the Refugees Convention for reasons of race, religion and political opinion.  The Tribunal described what it called “an extensive and complex set of claims” and, before recording its findings, observed that there was “a high degree of interplay” between certain aspects of those claims.  In the event, the Tribunal rejected all the applicant’s claims, holding that he had no “well-founded” fear of persecution for any Convention reason. 

5. The applicant is a national of a country that is stigmatized by the western news media for its repressive government and for the involvement of that government in terrorist activities.  He is an electrical engineer who worked in weapons manufacture for his country.  In considering the applicant’s fear on account of political opinion or imputed political opinion, the Tribunal identified (at p33) one of his claims to be dealt with as “detention, interrogation and torture in connection with allegations of sabotage at his workplace”.  On that topic, the Tribunal concluded (at pp 35-36):

   “I have considered the applicant’s account of his detention, interrogation and torture in connection with allegations of sabotage at his workplace in May 1993.  I accept that he worked as an engineer in the organisation; that machines were damaged and sabotage suspected; and that he was questioned about whether he had been involved.  Other claims made by the applicant are that he was detained by the security authorities for two weeks; that he was severely tortured during which his leg and his rectum were badly injured; that after the first five days a person from his workplace came to the security office where he was held because he believed the applicant was innocent and said that the applicant was required at work to fix machines; that he was released after another ten days and that the security officers apologised to him when he was released.  I have been unable to accept aspects of these other claims as plausible.  First, I found the applicant’s evidence about remaining in detention for a further ten days following the visit of the person from his workplace who believed he was innocent unconvincing.  I note the applicant’s adviser’s submission that the applicant may have been kept so that he could recover from some of the injuries he sustained during torture but I doubt that the [the country’s] security authorities would switch from interrogating the applicant on one day to awaiting his recovery the next.  I do not consider that [the country’s] security authorities, when investigating a matter such as sabotage of what he claims was a machine which was subject to tight security, would be concerned about releasing a person from detention with obvious injuries.  He has said that he thinks he was watched with a surveillance camera during this ten day period prior to his release but there is no evidence before me to support such an assertion or to suggest why the authorities may have done so and what they may have been expecting to see: his evidence is that he was in detention and so unlikely to go anywhere or do very much without the knowledge of officials involved.  Second, I find it quite implausible that an episode such as that described by the applicant would be followed with an apology at the time of his release and I found his account of a friend being released from detention some time earlier with an apology as well as a banquet even more so.  The applicant’s adviser submitted that the possibility that the applicant’s interrogation occurred because of his imputed political opinion could not be discounted.  However, I consider the applicant’s evidence of being released with an apology, being able to return to his workplace and nothing further happening in the five or so months before he claims to have left [the country] indicates that such a possibility can be dismissed.  I am prepared to accept that the applicant could have been hurt while being questioned about the sabotage but consider that his evidence that he was released supports a conclusion that he was found not to be involved.  The applicant claims that he had not wanted to go into detail in putting his claims for recognition as a refugee about the sexual assault which he claims occurred during torture and I understand his adviser’s submission that it is difficult for [him] to discuss matters such as this.  As already stated, I decided not to require that the applicant undergo a medical examination because medical records indicated that this part of his body had received some medical attention well before the date when he claims the torture occurred and specialist advice was that in these circumstances an examination may not conclusively determine the cause of any damage.  I have considered whether it would be appropriate to extend the benefit of the doubt to this set of claims about what occurred in May 1993 and so accept his account of what occurred but the concerns with his evidence about the episode are of such significance that I am unable to accept that his account of what occurred is true and find that his claims concerning the duration of detention, the torture and the circumstances of his release have been exaggerated.”

6. The applicant’s challenge to the Tribunal’s decision is based on the way in which it dealt with the allegations of torture during his detention in 1993.  Particulars of those allegations were included in a statement by the applicant, which accompanied his visa application.  Those particulars involved physical injuries, about which he also evidently gave evidence on 30 July 1998.  (A transcript of that hearing is not in evidence.)  Specifically, the Tribunal referred in its reasons for decision (at p 16) to the evidence before it on rectal trauma as follows:

   “The applicant claims that on this occasion his rectum was injured during torture he claims to have suffered and that he had two operations to repair the damage.  One took place, he claims, in [Country A] in 1995.  He claims that he had several examinations in [his country of nationality, Country B] and then in [Country A].  The applicant did not mention these operations when he completed the form for a medical examination which was arranged by the Department.  He offered to undergo a medical examination but advised that this would be very difficult for him.  Medical records which were with the applicant when he arrived in Australia indicated that he had medical procedures on this part of his body before the time of the claimed torture – a procedure involving ‘piles’ in 1990, which the applicant stated in a statutory declaration dated 14 December 1998 was an investigative procedure, and another test because of bleeding from the rectum in 1992, a condition which the applicant claims to have not experienced at that time.  The applicant claims that his previous problems were aggravated after the torture injury.  The Tribunal received advice from a colorectal surgeon that it may be difficult to determine whether the damage the applicant claims to have sustained occurred as a result of trauma or as a result of earlier procedures and in these circumstances decided not to require a medical report on this aspect of his claims.”

7. Not all the material before the Tribunal is in evidence, but the relevant parts of its review may be traced.  On 6 October 1998 the Tribunal wrote to the applicant, inviting comment on the operations allegedly required as a result of injuries suffered during his detention in 1993.  The applicant furnished further information in a statutory declaration made on 22 October 1998, in which he indicated that he had had two operations to repair internal damage caused by the assault to his rectum and that he would be reluctantly prepared, if necessary, to undergo further medical examination to verify the injury.  The Tribunal evidently concluded from his medical records that the applicant had also had an operation for haemorrhoids.  On 28 October 1998 the Tribunal asked Dr Graham L Newstead, a colorectal surgeon, to advise “if it would be likely that a doctor/surgeon could determine whether scars/scar tissue of this kind had occurred as a result of surgery to remove the haemorrhoids or as a result of surgery to repair the damage from an assault?”  Dr Newstead replied the same day:

   “It is possible that a Specialist Colorectal Surgeon may be able to determine whether scar tissue was the result of surgery for haemorrhoidectomy or surgery for other purposes.  It really depends upon whether the damage was gross and the nature of the surgery required to repair the damage.  A badly performed haemorrhoidectomy could produce significant scarring and confuse the issue however.

   An important point is to denote [sic] that haemorrhoids occur in the lowest part of the rectal lining and surgery involves excision of that segment in addition to the lower anal (skin) component.  This is usually done in three segments.

   If traumatic damage occurred to the lower rectum then scarring would be somewhat higher but if it had occurred effecting [sic] the anal sphincter mechanism (underneath the lower skin component of the anal canal, then it may be difficult to tell one from the other.

   Disruption of the surrounding sphincter muscles (repaired or not) may be able to be assessed by intra-anal ultrasound.  My associate, Dr Philip Douglas is more authoritative in this particular aspect (intra-anal ultrasound)”.

8. On 1 December 1998 the Tribunal wrote again to the applicant, seeking to clarify the number of operations that he claimed to have had as a result of the injury suffered during detention.  The Tribunal also referred in that letter to medical records concerning the applicant and said that:

   “[it had] advice from a colorectal surgeon that it may be difficult to determine whether the damage you claim to have sustained occurred as a result of trauma or as a result of haemorrhoidectomy and, against this background, where an examination may not provide conclusive evidence, [the Tribunal] does not propose to request that you undergo an examination.”

9. The applicant’s agent replied to the Tribunal on 14 December 1998.  She enclosed a statutory declaration by the applicant, in which he elaborated upon earlier accounts of medical treatment to his rectal area.  The agent said in her covering letter:

   “We thank the Tribunal for being understanding about the need for an internal examination.  We trust the information supplied by [the applicant] in his attached statutory declaration is sufficient for the purposes of the Tribunal.  It is clear that the injuries sustained in 1993 were quite separate from those colon problems suffered prior to the torture episode.  We reiterate that it is extremely difficult for [him] to discuss such injuries.”

10. The applicant submits that the Tribunal fell into error of law and failed to observe appropriate procedures in its consideration of the alleged damage to his rectal area. Specifically, he complains that the Tribunal failed to tell Dr Newstead that the haemorrhoidectomy preceded the assault occasioning reparative surgery, to have either Dr Newstead or Dr Douglas carry out an exploratory examination despite his willingness to undergo such an assessment, to inform his agent that “further medical inquiry was possible”, and to inform his agent “that [the Tribunal’s] findings would be other than supportive of his claim”. This catalogue of complaints was not linked in any particular fashion to the grounds available under s 476(1) of the Act, but reference was made to s 420(2)(b) of the Act and what Wilcox J said in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119.

11. Section 427(1)(d) of the Act does provide that the Tribunal may require the Secretary to the Department to arrange for the making of any medical examination that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that examination. The evidence before the Court does not disclose why the Tribunal made its seemingly naive inquiry of Dr Newstead about “scars/scar tissue”. Indeed, that evidence does not disclose whether the applicant had such scars. The applicant said in his initial statement to the Department that he “had electric shock to his private parts”. That last expression, whilst perhaps not a term of art, is hardly apt to describe a person’s rectum. The evidence adduced in this proceeding does not reveal whether the material before the Tribunal described with any particularity the alleged assault on the applicant’s rectum. The applicant did say, in his final statutory declaration made on 14 December 1998, that the pain following his torture “seemed to feel like I had a cut wound inside that part of my body”. This does perhaps suggest that there was some kind of penetration beyond the anal sphincter mechanism. However that may be, it is obvious that the Tribunal never purported to give Dr Newstead a comprehensive medical history of the applicant’s rectal problems. Further, the doctor does not appear to have thought that the order in which operations took place would make any difference to the question he was asked. Was the Tribunal obliged then to have the Secretary arrange a medical examination? Dr Newstead certainly did not suggest that the question whether trauma was occasioned by assault would be positively determined by an examination. Nor does he definitely state that an intra-anal ultrasound would assist in answering that question. In those circumstances, I cannot regard this case as falling into the extreme category identified in Sun. 

12. So far as the Tribunal’s letter of 1 December 1998 is concerned, I can discern no lack of fairness in what the Tribunal told the applicant’s agent. Had the Tribunal told the agent what Dr Newstead said may be able to be assessed by intra-anal ultrasound, it is hardly likely that the applicant would have requested the Tribunal to arrange such a procedure. So much may be confidently surmised from the response of the applicant’s agent on 14 December 1998. However, no matter how considerate the Tribunal may have been, the applicant was not justified in deluding himself that his claims had been accepted. Any fairness required by s 420(2)(b) of the Act could not require that the Tribunal may not reject what an applicant puts forward without further notice to him: Kioa v West (1985) 159 CLR 550 per Mason J at 587. In the present case, it is clear that the Tribunal did not rely on Dr Newstead’s advice in deciding whether to accept or reject the applicant’s claim that his rectum had been injured during his detention. It follows that the applicant’s challenge to this aspect of the Tribunal’s discharge of its review function fails.

13. Next, the applicant submits that the Tribunal failed to reach a finding on his allegations of torture and, in that respect, failed to deal with a central issue in his claim for protection under the Refugees Convention.  The reasons of the Tribunal are, of course, not to be construed too minutely and finely.  I confess that at first blush I was struck by the indeterminate tone of the Tribunal’s finding that the applicant’s claims concerning torture had been “exaggerated”.  However, read in context, I think it is clear that those claims have not been accepted by the Tribunal and that the Tribunal merely accepts that the applicant “could have been hurt whilst being questioned”.  Counsel for the applicant describes this finding as “weasel words”.  However, I think that, on the contrary, it reveals the Tribunal’s preparedness not to overlook the possibility of some physical pain being experienced during detention, whilst deliberately rejecting the claim of sexual assault.

14. Counsel for the applicant relies on Nagaratnam v Minister for Immigrationand Multicultural Affairs [1999] FCA 176 to emphasize the importance of the Tribunal’s findings about physical mistreatment during detention. An allegation of torture is always an extremely grave matter but, as explained in Nagaratnam, findings about such alleged events in the past are only relevant in order to determine whether an asylum applicant has a well-founded fear of persecution for a Convention reason.  In the present case, as counsel for the respondent correctly points out, the Tribunal found that the detention or questioning did not occur on account of the applicant’s political opinion or imputed political opinion.  The extent of any injuries suffered during his detention was thus not a matter centrally relevant to the decision to be made.  In my opinion, the Tribunal has not failed to give genuine and realistic consideration to the applicant’s claim so that its decision involved an error of law.

1. Two other matters were raised by the applicant in the present proceeding.  The first is the fact that a letter dated 26 June 1998 about another person was apparently wrongly placed on the Tribunal’s file concerning the applicant.  That letter antedates the application for review, which the applicant lodged with the Tribunal on 29 June 1998.  It is quite clear that the contents of this letter played no part in the Tribunal’s determination.  This was a silly point for the applicant’s counsel to take and trivializes the proceeding.  Nor is there any substance in the other matter raised concerning the applicant’s mental stability.  That factor was not directly relevant to the applicant’s claims.  The Tribunal exhibited great solicitude towards the applicant, but it was not responsible for his medical treatment whilst he was in detention.

2. The application will be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             6 May 1999

Counsel for the applicant:	G L V Hooton
Counsel for the respondent:	D H Godwin
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	29 April 1999
Date of judgment:	6 May 1999