Imini Krimo v Minister for Immigration & Multicultural Affairs
[1997] FCA 616
•4 July 1997
IN THE FEDERAL COURT OF AUSTRALIA )
) NEW SOUTH WALES DISTRICT REGISTRY ) NG 218 of 1997 ) GENERAL DIVISION )
BETWEEN: IMINI KRIMO
ApplicantAND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE(s): SACKVILLE J PLACE: SYDNEY DATED: 4 JULY 1997
EX TEMPORE REASONS FOR JUDGMENT
The Proceedings
This is an application for review of a determination made by the Refugee Review Tribunal (“Tribunal”) on 24 February 1997. The Tribunal decided that the applicant did not satisfy the Migration Act 1958 (Cth) (“Migration Act”) criterion for a protection visa, namely, that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (“Convention”) as amended by the Refugees Protocol: Migration Act, s 36(2). Accordingly, the Tribunal affirmed the decision of the delegate of the Minister of Immigration and Multicultural Affairs (“Minister”) to refuse the application for a protection visa.
The application for an order of review, filed on 24 March 1997, does not specify the grounds on which the applicant relies for the review of the Tribunal’s determination. The application makes a general claim that the applicant fears persecution on the basis of political belief if he returns to his native country, Libya. The application was clearly prepared without the benefit of legal assistance.
The applicant was not legally represented at the hearing before this Court. His presentation was translated by a qualified and accredited Arabic language interpreter. The proceedings were, of course, translated for the applicant.
The Legislation
Review of a decision of a determination by the Tribunal may be sought under Part 8 of the Migration Act: see now Migration Act, s 485; Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322. The grounds of review on which the applicant may rely in these proceedings are limited by s 476 of the Migration Act: see Ozmanian; Dai Xing Yao v Minister for Immigration and Ethnic Affairs, 18 September 1996, Full Court, FCA, unreported.
The provisions of the Migration Act that appear to be material to the present proceedings are the following:
"420 (1)The [Tribunal], in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The [Tribunal], in reviewing a decision;
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
425 (1) ...the [Tribunal]:
(a)must give the applicant an opportunity to appear before it to give evidence; and
(b)may obtain such other evidence as it considers necessary.
(2)Subject to paragraph (1)(a), the [Tribunal] is not required to allow any person to address it orally about the issues arising in relation to the decision under review.
...
475 (1)Subject to subsection (2), the following decisions are judicially-reviewable decisions:
(a) ...
(b) decisions of the [Tribunal];
...
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;
…
(g)that there was no evidence or other material to justify the making of the decision.
…
476(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 a power that is so unreasonable that no reasonable person could have so exercised the power.”
Background
The following facts are taken from the Tribunal’s reasons. The applicant is a national of Libya. He was born in Tripoli in February 1966 and lived in that city until he was 12 years old. At that time he moved with his mother and sister to Al Zawiyah, a village 70 kilometres from Tripoli. He left Libya in 1984 as an illegal stowaway on a ship travelling to Italy. He lived and worked in Italy from 1984 to 1996 as an illegal immigrant. During this time he did not apply for refugee status in Italy. In 1996 he left Italy and travelled to France and Holland, finally departing from Holland as a stowaway on a ship bound for Australia via England and North America.
The applicant arrived in Australia illegally in October 1996. On arrival he was held in immigration detention. The applicant made an application for a protection visa to the Department of Immigration and Multicultural Affairs on 22 October 1996. On 8 January 1997, the delegate of the Minister rejected the applicant’s application for refugee status. The decision record, giving reasons for the decision, is a typed document 12 pages in length.
On 10 January 1997, the applicant lodged an application with the Tribunal for review of the delegate’s decision. The application for review was apparently prepared with the assistance of a registered migration agent and was supported by a further typed submission four pages in length setting out the applicant’s background and claims to refugee status.
The Tribunal conducted an oral hearing in relation to the application for review on 11 February 1997. The applicant was present and assisted by an adviser. The proceedings were translated by an Arabic language interpreter. The applicant’s application was supported by further written submissions filed on 21 February 1997. The submissions, prepared by the applicant’s migration agent, consisted of three typed pages addressing specific aspects of the applicant’s case, under the following headings:
“1. WELL-FOUNDED FEAR OF PERSECUTION
2. REAL CHANCE TEST
3. POLITICAL OPINION
4. CONCLUSION”
The submissions annexed a copy of a US Information Service 1996 Human Rights Report Libya. The Tribunal also had before it the departmental file on the applicant’s application, file no. N96/003512.
The Applicant’s Claims
The applicant made a number of claims in support of his application for refugee status. These claims were summarised by the Tribunal, when quoting the reasons of the primary decision-maker, as follows:
“2.1.1The applicant claims to be a citizen of Libya, and claims to have been residing in Italy from 1984 until his departure from Italy in August 1996.
2.1.2The applicant claims that his father was an Imam in Libya and was involved with a fundamentalist Islamic Movement, and was killed [along with one of the father’s two brothers] by authorities in 1983 because of his involvement with this fundamentalist Islamic Movement.
2.1.3The applicant claims that he fled Libya because the authorities were intent on killing him. He claims that if he returns to Libya the authorities will kill him because of his father’s involvement in the fundamentalist Islamic Movement.”
In addition to these claims, which were made both before the primary decision-maker and the Tribunal, the applicant made a claim before the Tribunal that the second of his father’s brothers, Hafid, was killed by the Libyan authorities shortly after his father’s death. The applicant claimed that his uncle’s death was another factor in his decision to leave Libya and contributed to his fear of persecution should he be forced to return to Libya.
The Tribunal’s Findings
At the conclusion of its reasons, the Tribunal made the following findings with respect to the applicant’s claims:
The applicant is a Libyan national.
The applicant’s failure to apply for refugee status in the twelve years following his departure from Libya and prior to his arrival in Australia, was evidence that the applicant did not have a genuine fear of Convention-based persecution. The applicant had sufficient opportunity to apply for refugee status when in Europe during this period.
The applicant’s evidence of his father’s political activities and death at the hands of the Libyan authorities arose only from information provided to him by his mother. He had no personal knowledge of these events. The information was not reliable. There was no “objective evidence” to support the applicant’s claim that his father was involved in the Islamic Movement or that he was killed by government forces by reason of those political activities.
The applicant’s claim that his uncle, Hafid, had also been killed by Libyan authorities was a recent invention, which was designed to enhance the applicant’s claim following the Minister’s decision to reject the application.
The chance that the applicant would suffer persecution for a Convention reason if he were to return to Libya was remote.
The Tribunal was not satisfied that the applicant had a well-founded fear of Convention-related persecution.
Was There an Error of Law?
The substance of the applicant’s complaint appears to be that his account of events should have been accepted by the Tribunal and that he is likely to face death in Libya if he is forced to return to that country. However, it is necessary to remember that the grounds for review of the Tribunal’s decision are limited to those stated in s 476(1) of the Migration Act and are subject to the restrictions specified in s 476(2) of the Act. It is not open to this Court to reassess the facts in order to determine whether the Tribunal’s decision was correct on the merits. The Court’s role is a limited one.
One of the grounds of review provided for in the Migration Act is that the decision involved an error of law: s 476(1)(e). The Tribunal commenced its reasons by citing the relevant part of the definition of “refugee” in Article 1 of the Convention, as a person who:
“owing to well-founded fear of being persecuted for reasons of …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…”.
The Tribunal applied the test of what constitutes a “well-founded fear” set out by the High Court in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The Tribunal stated the test as follows:
“a person has a ‘well-founded fear of persecution’ under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason”.
The Tribunal noted that a “real chance” is one that is not “remote or insubstantial” or “a far-fetched possibility”: citing Chan, at 407 per Toohey J, 429 per McHugh J. The Tribunal also addressed the concept of “persecution” and referred to the five Convention reasons, namely, race, religion, nationality, political opinion and membership of a particular social group.
The principles stated by the Tribunal do not involve a departure from the correct principles. Unless there is something in the Tribunal’s reasons to show that it misapplied the principles, there is no basis for holding that the Tribunal’s decision involved an error of law. In addressing this question, it is necessary to give the Tribunal’s reasons a “beneficial construction”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-272, per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Tribunal’s Consideration of the Facts
It must be said that there are aspects of the Tribunal’s reasoning that are a little curious. For example, early in its reasons, the Tribunal stated that it was not satisfied that the applicant had a subjective fear of persecution, “because he delayed applying for refugee status for 12 years even though he had the opportunity to seek such protection”. Undoubtedly, it is correct to say that the Tribunal could take account of a delay in applying for refugee status where assessing the credibility of the applicant’s account of events. However, the applicant provided an explanation of why he failed to apply for refugee status at an earlier time, namely, that he had been told that the Italian government did not grant refugee status. The applicant told the Tribunal that he had not sought refugee status while in Italy, France, Holland or England because he had no knowledge of the refugee process in Europe and understood that countries other than Australia do not respect human rights or protect refugees. The Tribunal found the applicant’s “belief that there is no protection for refugees in Europe [is] unfounded”.
The issue before the Tribunal, when considering whether the applicant had a subjective fear of persecution, was not whether the applicant’s belief about protection for refugees in Europe was unfounded. Rather, the question was whether his explanation for not applying for refugee status while in Europe should have been accepted and whether his assertions about his subjective fear were credible. The Tribunal stated that it regarded the fact that the applicant did not apply for refugee status in Europe as evidence that he did not have a well-founded fear of persecution. However, the Tribunal made no specific finding, at least at this point in its reasoning, that it rejected the applicant’s assertion that he believed that he would be persecuted if forced to return to Libya and, indeed, it is not entirely clear whether the Tribunal intended to express a finding that the applicant had no such subjective fear.
On another issue, the Tribunal found that the information obtained by the applicant about his father was not a “reliable statement of fact”. This was said to be because the information was communicated to him by his mother and she had learned of the information only from a friend, Mr Asalah. The Tribunal pointed out that, on the applicant’s own evidence, he had lived with his father only for the first twelve years of his life. For the following six years (until he left Libya) he had lived with his mother, sister and uncle in the countryside, while his father remained in Tripoli. Until his mother informed him in 1983 that his father had been involved in the Islamic movement, he had no idea that this was the case. The Tribunal also noted that the applicant’s evidence suggested that his mother was also unaware of the applicant’s political activities until 1983.
The Tribunal recorded the applicant’s belief that Mr Asalah was not involved in dissident political activities personally. It continued as follows:
“If the Tribunal accepts that Mr Asalah was not involved in the activities of the Islamic Movement, there is no evidence to establish how he would know about the political activities of the applicant’s father. There is no objective evidence that the applicant’s father was involved in political activity of the Islamic Movement. The Tribunal doubts the reliability of the information from Mr Asalah, and finds that the sources of the information of his father’s political activities to be not objective.
The Tribunal is not therefore satisfied that the applicant was sought by the police in Libya for persecution related to his father’s political activities.”
There are also some curious features about this reasoning. The Tribunal appears to accept that the applicant was told by his mother of his father’s death by reason of his (the father’s) involvement with the Islamic Movement. The Tribunal “doubt[ed] the reliability” of Mr Asalah’s information. However, that does not necessarily amount to a finding that on all the evidence the applicant’s father either was not involved in political activities or that, if he was, his death did not result from those activities.
Despite these features of the Tribunal’s reasoning, I think that the reasons, read as a whole, do not suggest that the Tribunal misconstrued or failed to apply the correct tests. Clearly enough, the Tribunal appreciated that its task was to determine whether the applicant had a “well-founded fear of persecution”. It accepted that such a fear could exist even if there is a less than 50 per cent chance that the object of the fear will eventuate: Minister for Immigration and Ethnic Affairs v Guo, 13 June 1997, High Court, unreported, at 13-14 (joint judgment). There is nothing to indicate, for example, that the Tribunal applied a balance of probabilities test in determining whether there was a real chance that the applicant would be persecuted if he returned to Libya.
If the Tribunal’s reasons are read as a whole, as Mr Markus, who appeared for the Minister, submitted they should be, the Tribunal did make findings about past events, as it was entitled to do: Guo, at 16. The Tribunal expressly found that the applicant’s father had not been involved with the Islamic Movement and thus his death could not have arisen out of any such involvement. The Tribunal also found that the applicant had no political affiliations, had not experienced any police harassment in Libya and had not been the subject of ongoing interest by the Libyan authorities. In addition, it found that the applicant had left Libya some 12 years before arriving in Australia. It was open to the Tribunal, having regard to these findings of fact, to conclude (as it did) that, whether or not the applicant had a subjective fear of persecution, he did not have a well-founded fear of persecution, whether for imputed political opinions, or any other Convention reason, if he were to return to Libya. I repeat that it is not the role of this Court to reassess the facts before the Tribunal to determine whether its decision was correct on the merits.
Other Issues
The applicant did not raise any other issue for consideration, and I do not think that any other ground for setting aside the Tribunal’s decision is apparent. In particular, there is nothing that appears to suggest that the procedures the Migration Act requires to be observed in making a determination were not followed by the Tribunal or that there was no evidence to support the Tribunal’s decision.
Conclusion
In these circumstances, the application must be dismissed. An application for costs having been made, the applicant should be ordered to pay the respondent’s costs.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville
Associate:
Dated: 4 July 1997
Counsel for the applicant: The applicant was self represented. Solicitor for the respondent: Mr A. Markus, Australian Government Solicitor, appeared for the respondent. Dates of Hearing: 4 July, 1997.
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