Makdessi v Minister for Immigration & Multicultural Affairs
[1999] FCA 782
•2 JUNE 1999
FEDERAL COURT OF AUSTRALIA
Makdessi v Minister for Immigration & Multicultural Affairs [1999] FCA 782
MIGRATION LAW – application to review a decision of the Refugee Review Tribunal which affirmed a decision not to grant a protection visa – failure of Tribunal to make findings in respect of matters of fact that were directly material to the issues raised by applicant as a basis of persecution – error of law.
Migration Act 1958 (Cth), ss 430, 475
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 cited
Collector of Customs v Pozzolanic (1993) 43 FCR 280 referred to
Paramananthan v The Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 cited
Logenthiran v Minister for Immigration and Multicultural Affairs (unreported, Full Court Federal Court, 21 December 1998) cited
Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 citedMatter No. N 70 of 1999
MOUSSA NICOLAS MAKDESSI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VON DOUSSA J
SYDNEY
2 JUNE 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 70 OF 1999
BETWEEN:
MOUSSA NICOLAS MAKDESSI
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
VON DOUSSA J
DATE OF ORDER:
2 JUNE 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The decision of the Refugee Review Tribunal made on 30 December 1998 be set aside.
2.The matter be remitted to the Refugee Review Tribunal for decision according to law.
3.The respondent pay the applicant’s costs of the application for review.
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 70 OF 1999
BETWEEN:
MOUSSA NICOLAS MAKDESSI
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
VON DOUSSA J
DATE:
2 JUNE 1999
PLACE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
This is an application to review a decision of the Refugee Review Tribunal (the RRT) made on 30 December 1998. The RRT refused the applicant’s application for a protection visa on the ground that he was not a person to whom Australia owed protection obligations. The applicant had alleged that he was a refugee.
The applicant was born on 25 November 1962 in North Lebanon. In his application for a visa he said that he had never been married and he is of the Orthodox Christian religion. He claims that he was displaced from his city of birth due to the civil war in Lebanon in 1975 and 1976 and that he and his family moved to Zgarta. The applicant completed his schooling there and because of the situation applying in Lebanon at the time, he decided against pursuing a university education.
In about 1987 or 1988 he found work with an international organisation known as MTI International. In evidence before the RRT he said that he had worked with the company from then until he left Lebanon in 1997. MTI International was an advertising organisation which promoted singers and musical artists. The applicant’s work required him to put up large posters which were about two metres by three metres on stands in public places.
He claims that in the course of that work he suffered harassment for a Convention reason which caused him ultimately to leave Lebanon. He obtained for that purpose a visa to travel to Australia and left Lebanon in April 1997. He arrived in Australia on 3 April 1997 and he made his application for a protection visa on about 23 June 1997. That application was refused and the review of the adverse decision by the RRT was decided against him.
This application is brought pursuant to s 475 of the Migration Act 1958 (Cth) (the Act). The jurisdiction of this Court is limited to the grounds specified in s 476(1) of the Act. Counsel for the applicant has identified that the applicant seeks to rely on paras 476(1)(a) and 476(1)(e).
The information contained in the papers before the Court is not complete. It does not include either notes of the evidence that was given by the applicant before the RRT nor any of the country reports that were plainly available to the RRT. However, the Reasons of the RRT and the documents that are available sufficiently indicate the nature of the claims which were advanced by the applicant to enable a decision to be made on the present application.
The claims are summarised in the early part of the Reasons. When that summary is compared with the text of the decision appearing under the heading “Findings and Reasons”, I am of the view that error is demonstrated in the decision of a kind that comes within the paragraphs of s 476(1) relied upon.
The claim initially made by the applicant did not specify whether he asserted persecution by reason of religion or political opinion. In the application form, in answer to the question: “Why did you leave that country?” – in this instance Lebanon – he said: “For fear of imprisonment and assassination” and referred to a statement that was attached to the application. In answer to the question: “Why did you think they will harm/mistreat you if you go back?” he said: “When I refused to affix photos of posters of Ayatollah Khomeini and Saeed Shaaban, I am considered as incosistent (sic) with Islamic law, and so I have to be punished by the fundamentalist parties”.
In answer to the question: “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” he said: “No, because the Lebanese Government cannot control the Islamic parties and other outlaw parties” and again referred to his statement. The content of that statement was expanded in evidence. The summary of that evidence contained in the Reasons indicates that the applicant asserted four events which he said not only gave rise to his subjective fear of harassment and persecution but provided the objective basis for a well founded belief in that regard. I read the description that was given by the RRT:
“The applicant said that he first experienced a problem in 1988 in Tripoli when he was required to paste posters at Christmas depicting a Christmas tree and Christmas lights. The applicant said that a member of the Lebanese Police Force approached him and prevented him from doing his job. The police officer told him what he was doing was illegal and that he had to accompany him to the police station. The applicant said that he was held there for about 2 or 3 hours until the company manager came to the station and told the police officers that the advertisement had been authorised by the Council of Tripoli. The applicant said that he was released but he was told by the company manager that the police officer who had stopped him from carrying out his work was a Muslim extremist and did not want him to carry out what was considered to be a pro-Christian act.
The applicant said another incident occurred in 1995 when he was pasting a picture of the singer Wa’el Kfoury. He said that a group of about 5 Syrian soldiers approached him in a jeep and asked him to hang up a poster of Basil Assad who was the deceased son of the Syrian president. The applicant said that when he refused because he was there to do a specific job they took him to their own station within the Syrian administration two hours outside of Tripoli, where they detained him until the following day. He said that he was hit and tortured while there. The applicant said that when he returned home his family advised him to leave the job but he could not because he did not know what else to do and he needed the money.
The applicant described a further incident in 1996 to the Tribunal. He said he was hanging a poster of a singer, Nawal Al-Zoghbi, in Jounieh. He said that he was in the southern area of Jounieh, which is controlled by the Hezbollah. The applicant said that four men asked him to hang posters in support of Iran, Khomeini and the Hezbollah. He refused and one of them came towards him and hit him with the butt of a pistol. He claims that he was bleeding and they left him lying on the ground. He stopped hanging the posters, placed a handkerchief to his head and went home. The applicant said that he could not leave his job because he needed to earn a living and sometimes a person endures anything for employment.
The applicant said that he told his employer about the incidents, but he said he could not do anything about them.
The applicant said that the last incident occurred in 1997, about one month before he came to Australia. He said that he was in Tripoli and that the Pope was about to visit Lebanon. During this period he was hanging posters for a well-known confectioner in Lebanon. He said that as he was hanging these posters, elements of the Islamic Religious Union (‘Al Tawhid El Islami’) asked him to hang posters in protest of the Pope’s visit to Lebanon. When he objected they started to hit him and grabbed his crucifix and stepped on it and they threatened to kill him. He claims that they said that they would find him anywhere. His mother told him to leave Lebanon. The applicant said that ‘Al Tawhid El Islami’ is an extremist party and is anti-Christian.
The applicant claims that his life has been threatened and the threat still exists. He believes that he will be killed.”
It appears from that summary of the evidence, that in only one of these incidents, was there a threat made to the applicant of ongoing harm. That is in respect of the last incident, when he claimed that members of the Islamic Religious Union said they would find him anywhere, and added that his life had been threatened and the threat still exists.
It will also be noted that the applicant’s departure from Lebanon occurred very shortly after the last incident, which in point of time and by reason of its description, would appear to be the most significant of the incidents asserted as the basis for the fear which the applicant claimed entitled him to the status of a refugee.
Under the heading “Findings and Reasons”, the RRT said that it accepted that the applicant had suffered harm and that he had been assaulted whenever he has refused to hang posters by various political interest groups. The RRT continued:
“The applicant described three incidents in which he was harmed, which have caused him to be afraid. He said that there were more such incidents, but these were the ones on which he relied to establish his claims for a protection visa.”
The RRT then said it would deal with each one in turn. It will be noted from the description that I have already given, that four incidents were advanced in some detail in support of the claim.
The RRT addressed what it perceived to be the three incidents. The first one, plainly, was that described as having occurred at Christmas time in Tripoli in 1988. In respect of that, the RRT found that the applicant did not suffer significant disadvantage or detriment and that being detained whilst the matter was resolved did not amount to persecution.
The second incident discussed can be related directly to the second of the incidents described by the applicant in his evidence as having occurred in 1995, when he was pasting up a picture of the singer Wa’el Kfoury. The RRT observed that on that occasion he refused to hang the poster of a political figure. The RRT said that it accepted that the applicant was treated harshly on that occasion and that he may have been detained for his refusal. But the RRT found that the reason for the harm was not for reasons of his political opinion, or because he was imputed with a political opinion, being anti-Syrian. On the contrary, the RRT appears to have concluded that the treatment that was meted out to him was due entirely to his refusal to perform the work which the persons that approached him wanted him to carry out, and that his refusal to do so was based on his own work commitments. The RRT then proceeded to address what must be interpreted as its understanding of the third and last of the incidents relied on. The RRT said:
“The last incident described by the applicant occurred in 1996 whilst he was hanging a poster of a singer in Jounieh. He said that members of an extremist Islamic party wanted him to hang up posters for them and when he refused, they attacked him and stepped on his crucifix and threatened that they would kill him. I accept this incident frightened the applicant, but I do not accept that the applicant was harmed for a Convention reason. He was harmed because he refused to do their bidding and these people were attempting to intimidate him in the hope that he would do what they wanted. There is no indication that by refusing he branded himself a political opponent in their eyes. Notwithstanding that they chose to express their anger by stamping on his crucifix, there is nothing to indicate that they were seeking to persecute him for reasons of his religion. Rather they were angry with him for refusing to do as they said.”
The RRT then expressed its ultimate conclusion that it was not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason now or in the reasonably foreseeable future should he return to Lebanon.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259, at 271-272 Brennan CJ and Toohey, McHugh and Gummow JJ refer to a decision of the Full Court of this Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 and continued:
“It was said that a court should not be ‘concerned with the looseness in the language…nor with unhappy phrasing’ of the reasons of an administrative decision-maker. ‘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 are well settled, they 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.”
It will be apparent from the RRT’s description of what it refers to as the last incident that there is a measure of confusion in what is said. In construing the importance of that confusion for the purposes of this application I bear in mind the observations of the High Court just quoted. However, s 430(1) of the Act specifically requires the RRT to record findings of fact on material questions and to refer to the evidence or other material on which the findings of fact were based. Section 430(1) provides:
“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and(d)refers to the evidence or any other material on which the findings of fact were based.”
In Paramananthan v The Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 the Full Court of this Court held that a decision of the RRT which held that the appellants were not refugees should be set aside on the grounds specified in s 476(1)(a) namely that procedures required by the Act to be observed in connection with the making of a decision were not observed. The RRT was held not to have complied with s 430(1)(c) and (d) because it did not make findings in respect of matters of fact that were directly material to the issues raised by the appellants as the basis of their alleged fears of persecution.
In that case the RRT had been referred to a document described as the British Refugees Council’s Paper entitled “Sri Lanka Tamils, the Home Office and the Forgotten War”. Within that report was a description of the culture within the Sri Lankan security forces which was one of suspicion of Tamils, particularly young Tamils and concluded with an observation that for the reasons given Colombo should not be assumed to be safe for Sri Lankan Tamils.
The RRT did not refer to that report in the course of its reasons. Wilcox J at 31 said:
“The tribunal was not, of course, bound to accept the information or opinions contained in this report. But the report was a recent, comprehensive, and carefully compiled analysis of the position of Tamils in Sri Lanka, including Colombo. It bore directly upon the matters in relation to which Mr Paramananthan expressed fears and spoke of mistreatment that included the type of mistreatment which, the tribunal accepted, he had suffered. The matters of fact alleged in the report were clearly material. But the tribunal member gave no inkling as to her reaction to them. Did she accept the report to be factually correct? If not, why not? If it was factually correct, how could it be an answer to Mr Paramananthan’s claim of a real fear of persecution to refer to the (earlier) Amnesty comment that abuses were not so widespread as before? There may be persecution at a particular time notwithstanding there was more widespread persecution at an earlier time. Although it was for the tribunal to decide what finding to make about the matter stated in the British Council report, it was obliged, by section 430(1)(c) of the Act, to set out its findings, and, by section 430(1)(d), to refer to the evidence on which they were based. The tribunal did not do this.”
In Logenthiran v Minister for Immigration and Multicultural Affairs (unreported, Full Court Federal Court, 21 December 1998), another decision by the same Full Court, delivered on the same day, a similar view was taken. In that case the appellant again was a young Tamil and in support of his claim for refugee status he gave evidence of incidents of mistreatment on five occasions after he had been taken in for questioning in Colombo.
The RRT in its reasons said that it found credible his claims in respect of three of those incidents and made findings in respect of them, but omitted to deal with the other two incidents which occurred close to the time when the appellant fled from Sri Lanka. Wilcox and Lindgren JJ, with whom Merkel J expressed his general agreement, at 11 said:
“We would allow the appeal because the RRT failed to deal with, or make findings in relation to, two claims of importance to Mr Logenthiran’s case. These were the claim that in April 1997, when he was en route to Vavuniya Mr Logenthiran was arrested, detained, interrogated and beaten by the Sri Lankan army and more importantly that in mid-June 1997, just a few days before he left Sri Lanka, the police in Colombo arrested him, detained him for a week, interrogated him and beat him. These claims, if believed, may have led the RRT to a different conclusion as to whether Mr Logenthiran’s fear of a repetition of such ill-treatment, if he were to return to Sri Lanka, was well-founded. The RRT would have had to weigh up Mr Logenthiran’s evidence of what had happened to him in these two incidents in 1997 against the more general material in the various documents to which it referred. One certainly cannot assume that if it had considered this evidence the RRT would have adhered to its view that ‘the chance of ill-treatment in custody will recur is remote’.”
In Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 another Full Court of this Court reiterated that the RRT must consider all the substantial claims and information in support of them put forward by the applicant, and held that a failure to do so constituted grounds to set aside the decision under paras 476(1)(a) and (e).
In the present case in my view the RRT failed to address the substance of the fourth of the incidents described by the applicant in his evidence, and failed to make findings on material facts relevant to those allegations.
There is, as I have observed, at least a measure of confusion in what is described by the RRT as the last incident under the heading “Findings and Reasons”. Ms Henderson, counsel for the respondent, has done her best to persuade the Court that whilst there is confusion, it is reasonably clear that the RRT has run together aspects of both the third and the fourth incidents described by the applicant. She submitted that the RRT nevertheless did address the material aspects of both incidents and made findings which justify the ultimate conclusion adverse to the applicant.
I do not agree with that submission. As I have indicated, it is the last of the incidents which occurred not in 1996 but in 1997, not whilst the applicant was hanging a picture of a singer but whilst he was hanging posters for a “well known confectioner”, that appears most important to his case. On that occasion he was asked to hang posters that were in protest to the Pope’s visit to Lebanon. That fact coupled with the fact that his crucifix was pulled from his neck and stamped on, was relied on by him in support of his claim that the harassment and persecution that he received on that occasion was by reason of his religion.
In my view the evidence was capable of supporting that view and was not indicative at all of conduct attributed to a political opinion on his part. Yet the RRT in referring to the assaults which it considered material to the decision has described the events as being perpetrated by people with various political interests. In my view the RRT has not addressed the substance of the allegation made in relation to the fourth incident, namely, that he was assaulted and threatened by reason of his religious views. The RRT has not addressed the question whether it was that incident, and the religious implications of it asserted by the applicant, that gave rise to the threat of future harassment.
It may well be the case that on a proper assessment of the evidence and other information advanced by the applicant that a tribunal correctly addressing the issues before it would nevertheless decide the matter adversely to the applicant. I pass no view on whether that is likely to be so or not. The applicant nevertheless is entitled to have his application for refugee status decided on the issues that he advances, and those issues identify what are the material facts upon which findings must be made and reasons given.
In my view that did not occur in this case. The confused reasoning which combines elements of both the third and the fourth incident relied on by the applicant has masked the real issue that was being asserted by the applicant. The error was perhaps further compounded by the fact that the RRT did not address itself to the true nature of the cause of the persecution relied on by the applicant. My understanding of the reasons of the RRT suggest that it perceived the substantial ground relied on to be one based on political opinion. Yet the fourth incident, as I interpret the description in the evidence, was really directed at persecution by reason of religion. In my opinion the reference to “reasons of his religion” in the penultimate sentence of the Reasons relating to the last incident does not constitute a sufficient finding on the material question of fact relating to the issue of persecution by reason of religion, and it fails to meet the requirements of s 430(1)(c).
In my opinion in this case the grounds alleged have been made out and the decision of the RRT should be set aside. The matter should be remitted to the RRT for further consideration. There should be an order that the respondent pay the applicant’s costs of the application.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa. Associate:
Dated: 2 June 1999
Counsel for the Applicant: M C R de Robillard Solicitor for the Applicant: Diamond Peisah & Co. Counsel for the Respondent: Ms R M Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 June 1999 Date of Judgment: 2 June 1999
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