Hani, Quassim Ben Mohamed v Minister for Immigration & Multicultural Affairs

[1998] FCA 1105

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal (“RRT”) decision refusing refugee status - whether RRT failed to observe procedures required by the Migration Act - whether RRT decision involved an incorrect application of the law to the facts as found – applicant’s submissions directed to merits review – adverse findings were open to RRT to make

Migration Act 1958 (Cth), s 476(1)(a), 476(1)(e), 476(2)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, considered

QUASSIM BEN MOHAMED HANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 661 of 1998

O’CONNOR  J
SYDNEY
8 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 661  of   1998

BETWEEN:	QUASSIM BEN MOHAMED HANI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		O'CONNOR J
DATE OF ORDER:		8 SEPTEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. 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	NG 661 of 1998

BETWEEN:	QUASSIM BEN MOHAMED HANI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'CONNOR J
DATE:	8 SEPTEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 20 April 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The grounds of the application as they appear in the handwritten document are:

1. That procedures that were required by the Migration Act 1958 (Cth) (“the Act”) and the Migration Regulations to be observed in connection with the making of the decision were not observed.

1. That the decision involved errors of law.

1. Omissions or errors in date cannot be perfected.

1. The member failed to consider that being a member of a party doesn’t mean one should know the entire history of that party.

1. The member failed to accept that the applicant has a well-founded fear of being killed if he is sent back to his country of origin.

The applicant seeks an order that the decision under review be set aside and be remitted back to the Refugee Review Tribunal to be heard and determined according to law.

Legislative Context
The relevant provisions of the Act in respect of this application are as follows:

“Application for review

476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

Factual Background

The applicant is a 23 year old single man from Tunisia.

On arrival in Australia the applicant stated that he was part-owner/manager of a chemical factory in Tunis and had borrowed money to set up a second factory.  His partner absconded with company funds and as a result the applicant had written cheques which were not honoured.  He claims that he cannot go back to Tunisia because he would be imprisoned for non-payment of the cheques.

At the Tribunal hearing the applicant gave a different story.  He claimed that he regularly attended a Mosque and was a supporter and sympathiser of the Hizb al-Nahda Party.  After 1997 he stopped going to religious lessons because of the draconian government crackdown on what it termed Islamic fundamentalism.  The applicant later began holding education sessions at his home.  On 26 February 1998 the applicant returned home from work and discovered his friend had been arrested at the applicant’s home.  The applicant fled to another city and on 28 February 1998 the applicant’s father bought him money and plane tickets to Japan.  In Japan the applicant obtained a visa for Australia.

The applicant now claims that he fears returning to Tunisia because of his association with the Hizb al-Nahda Party and that the statements made at the airport regarding his business problems and dishonoured cheques were not true and he had made them up to avoid being refused entry to Australia.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 18 March 1998.  The delegate’s decision refusing the application was made on 20 March 1998.  The applicant applied for a review of that decision by the Tribunal and that application for review was rejected by the Tribunal on 20 April 1998.

Tribunal’s Decision
The Tribunal made the following findings:

The Tribunal did not find the applicant to be a credible witness.  He did not mention his membership of Hizb al-Nahda when he first arrived.  The Tribunal found that no understanding of Australia’s protection laws were needed to answer questions about why he had left Tunisia and why he wanted asylum in Australia truthfully.  The Tribunal had difficulty accepting that the applicant would not have mentioned his membership of Nahda and the arrest of his friend if those claims were true.

The Tribunal did not accept that an active member, such as the applicant claims to be, would be unaware of significant facts such as the original name of the group, the names of its more important leaders and, most importantly, the name and current whereabouts of its leader.

The Tribunal concluded:

“After considering all the evidence, I do not accept that Mr Hani was a member or a supporter of the Hizb al-Nahda in Tunisia, nor that he fled the country to avoid arrest after one of his associates was detained.  Consequently there is no evidence before the Tribunal which supports Mr Hani’s claim for refugee status.  I am therefore not satisfied that he is someone to whom Australia has protection obligations under the Refugees Convention and he is not entitled to a protection visa.”

Submissions of the Parties
At the hearing before me on 31 August 1998 the respondent submitted that the Tribunal, in not accepting the applicant’s claims that he fled Tunisia because of his alleged political associations, made certain findings of fact adverse to the applicant’s credibility which it was open to the Tribunal to do on the evidence and material before it.  The applicant had not mentioned his membership of the political party Hizb al-Nahda at the airport interview, nor had he mentioned the arrest of his friend by police on 26 February 1998.

The respondent submitted that the adverse findings were also based on the unsatisfactory responses of the applicant to questions concerning otherwise generally well-known and significant facts about the history and current structure of the Hizb al-Nahda.

The respondent concluded that having made the adverse findings effectively disbelieving the applicant’s later claims (which concerned political opinion, or possibly, religion, as potential Convention-related grounds), it was not necessary for the Tribunal to further assess the claims in the context of whether or not such claims could give rise to a well-founded fear of persecution.

The applicant in making his submissions before me claimed he was under “a lot of pressure” by the officials at the airport but could not provide details of this pressure.   Moreover in a facsimile letter from his migration agents, AMI Migration Consultants, dated 14 April 1998 no mention is made of the applicant having been under pressure by officials at the airport as a basis for explaining discrepancies in the applicant’s story.

The applicant’s submissions were all directed to the merits of his case and explanations for his behaviour.   He agreed that the Tribunal in its decision had accurately described his responses at the hearing before it.

Decision

Before dealing with the grounds of review in this case, it is useful to consider the proper role for the court conducting such a review.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 the High Court said that a reviewing court is required to give the language of the decision maker a beneficial construction, without concern for looseness in language, unhappy phrasing or a verbal slip. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. These propositions:

“recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. ... any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision”. (at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ)

The approach of Kirby J to this task of review is considered at pp 291-293 where his Honour relevantly makes the following observations:

• The reasons under challenge must be read as a whole.  They must be considered fairly.  It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

• The reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review.

• The weight to be given to the material before the decision-maker is reserved to the decision-maker so long as (s)he applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review.  The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submissions.

The applicant in this case has done no more than challenge the factual conclusions of the Tribunal.  As the respondent has submitted the adverse findings were open to the decision-maker.  In so doing no legal error has been made.

The application is dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:             8 September 1998

Applicant:	Self-Represented
Counsel for the Respondent:	A F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 August 1998
Date of Judgment:	8 September 1998