NAOC v Refugee Review Tribunal
[2003] FMCA 588
•17 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAOC v REFUGEE REVIEW TRIBUNAL & ORS | [2003] FMCA 588 |
| MIGRATION – Review of Refugee Review Tribunal decision – where inconsistencies between the applicant’s written claims and his oral testimony at the hearing undermined the applicant’s credibility in the eyes of the Tribunal – whether the ‘nit-picking’ approach of the Tribunal amounts to an error of law – whether the human rights context requires consideration of whether a decision is justified and not simply unreasonable in the Wednesbury sense. |
R v Ministry of defence; Ex parte Smith [1996] QB 517
R v Secretary of State for the Home Department; Ex parte Bugdaycay [1987] AC 514
Chesterfield Properties Ltd v Secretary of State for the Environment [1997] EWHC Admin 709
R v Lord Saville; Ex parte A [2000] 1 WLR 1855
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
| Applicant: | NAOC |
| Respondent: | REFUGEE REVIEW TRIBUNAL & ORS |
| File No: | SZ 1329 of 2003 |
| Delivered on: | 17 December 2003 |
| Delivered at: | Sydney |
| Hearing date: | 5 December 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Dr S Churches |
| Solicitors for the Applicant: | Michaela Byers |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed
The applicant to pay the respondent’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1329 of 2003
| NAOC |
Applicant
And
| REFUGEE REVIEW TRIBUNAL & ORS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a Palestinian born in Al-Yarmouk refugee camp in Syria. He arrived in Australia on a travel document for Palestinian refugees issued by the Syrian authorities in January 1997 valid until 2002. The applicant arrived in Australia on 18 September 2000 and on 6 October he lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural Affairs. On 14 December 2000 a delegate of the Minister refused to grant him a visa and on 2 January 2001 he applied for review of that decision from the Refugee Review Tribunal.
The Tribunal held a hearing on the 26 November 2001 which was attended by the applicant. On 28 November 2001 the Tribunal wrote to the applicant advising him of certain information that would, subject to any comments he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The information referred to in the letter related to a number of inconsistencies between the applicant’s claims to the Department of Immigration and his evidence at the hearing. It was explained that the inconsistencies and new claims undermined his reliability as a witness [CB 99-100]. On
15 December 2001 the applicant’s advisers wrote to the Tribunal [CB 101-106] The letter attached a statement from the applicant which commenced with the words:
“ I do agree with you that there are a number of inconsistencies arose between my claims to the Department of Immigration and the evidence at the hearing.”
The Tribunal considered the applicant’s claims and on 8 January 2002 affirmed the decision not to grant a protection visa which it handed down on the 5 February 2002. At [CB 140] at the conclusion of the reasons for decision, the following appears:
“In summation
Given the significant adverse findings in credibility in regard to the matters mentioned above, the Tribunal cannot accept as credible the applicant’s claim that the PPSF have any on-going adverse in the applicant whatsoever.
At the conclusion of the hearing (26 November 2001) the Tribunal pointed out to the applicant that there were numerous contradictions in his claims at various stages in the refugee process, and noted the overall implausibility of his claims. The Tribunal wrote to the applicant about their concerns on 28 November 2001 and the applicant was given the opportunity to clarify the contradictions regarding the various claims that he has made, which he did so through his adviser. The Tribunal has given careful consideration to these responses, but cannot be satisfied that they have clarified the significant and numerous contradictions and implausibilities in any meaningful way.
Considering the applicant’s mendacity on not only the essential elements of his claim, but other aspects of his claim discussed above, as well as the numerous inconsistencies in his claims and evidence, and the inconsistencies with the independent evidence, the Tribunal finds that the claims of harm, and threats of harm, by the PPSF to be a fabrication. Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted [by the PPSF] for a convention reason in Syria in the foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a Convention reason is well-founded.”
The applicant claimed to have a well-founded fear of persecution for the Convention reason of political opinion because he believed that if he was returned to Syria he would be arrested and eliminated. The circumstances in which that was likely to occur arose out of him having become a member of the Palestinian Popular Struggle Front (PPSF) when he was 12 years old, having trained for at least two and a half years in Libya for what can only be described as terrorist activities, for having refused to participate in suicide missions on three occasions, for having been the subject of suspicion and surveillance by the PPSF and having been imprisoned by the PPSF for having disobeyed orders to kill Fattah members.
At [CB 137] the Tribunal indicated that it doubted that the applicant was ever a member of the PPSF but accepted that he was for the purposes of the claim. However, the status of that membership was held to be nothing other than a simple [or ordinary] member. The Tribunal did not accept the applicant was ever sent to Libya for military training or that it was likely that the applicant had ever been asked to undertake suicide missions. The Tribunal was particularly sceptical of the suggestion that the applicant had been allowed to refuse three times to undertake suicide missions. The Tribunal came to these views about the credibility of the applicant based upon his responses to questions, the inconsistencies previously referred to and its views about some documents submitted by the applicant to the Tribunal including a letter allegedly from his father. The Tribunal was also critical of certain identification documents issued by PPSF.
There was filed in court an amended application for review which replaced the original ten grounds of application with the following:
“The grounds of the Application are:
1. The tribunal has made conclusive findings against the credit of the Applicant, which findings were then the entire basis of the Applicant’s dismissal by the Tribunal, on a basis so unreasonable in a human rights context that the basis of the findings constitutes error of law going to jurisdictional error.
Particulars
The Tribunal primarily rests on the Applicant having made error between what he presented to the Department in writing after his arrival in Australia in September 2000, and what he said to the Tribunal at the hearing in November 2001. The approach by the Tribunal has been painfully nit-picking against the Applicant at every possible point, for example:
A. That the Applicant returned from Libya to Syria in 1990/1991 or late 1992, which dates differed between the statement to the Department and oral evidence.
B. That the Applicant was unable to give details about scuba diving, but the Applicant had explained that he was not physically suitable for diving at any length
C. That the Applicant was unsophisticated in his knowledge of the PPSF as to aims, leadership and membership.
D. That the Applicant gave different answers to the Department and the Tribunal as to the number of times that he was asked to undertake suicide missions.
E. That a father would not write to a son in the manner claimed by the Applicant.
F.
That the Applicant’s PPSF identity card was dated
31 December 2000, which was after the date that the Applicant said that he had been declared a traitor.
The applicant’s counsel also prepared a helpful and thorough set of submissions which attack the findings of the Tribunal. In my view the points are well made and I can easily see that another Tribunal considering the merits would not have come to such adverse conclusions about the applicant’s credibility from the responses which he gave and the apparent discrepancies. But that is not what this court is here to decide. This court has to consider whether the Tribunal fell into jurisdictional error in the manner in which it proceeded in this matter or came to its conclusions.
The applicant submits that in matters involving human rights the standard of curial review is not simply the so called Wedsnesbury standard but rather a standard of review of the administrative decision making processes by reference to those human rights. Rather than trying to encapsulate the important submissions of the applicant’s counsel I set out the relevant ones below.
2.2 … In R v Ministry of defence; Ex parte Smith [1996] QB 517, Sir Thomas Bingham MR (as his Lordship then was) said that he agreed with the following proposition put by counsel:
“The court may not interfere with the exercise of an administrative decision on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.”
2.3 His Lordship based his agreement specifically on (inter alia) the reasoning regarding the human rights aspects of a refugee claim as set out in R v Secretary of State for the Home Department; Ex parte Bugdaycay [1987] AC 514. This jurisprudence had its roots well established prior to the legislative incorporation of the European Convention on Human Rights into United Kingdom law in 1998 (see now Human Rights Act 1998 (UK)).
2.4 In English jurisprudence, this now means that, in the words of Laws J (as his Lordship then was) in Chesterfield Properties Ltd v Secretary of State for the Environment [1997] EWHC Admin 709 at [29]:
“ …Wednesbury, however, is not, at least not any longer, a monolithic standard of review.
[Where a human right is at stake, a reviewing court] presumes it to carry substantial force. Only another interest, a public interest, of greater force may override it.”
2.5 In R v Lord Saville; Ex parte A [2000] 1 WLR 1855 Lord Woolf MR (as his Lordship then was) said for the Court of Appeal at 1867 [37]:
“What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision maker to risk interfering with fundamental rights in the absence of compelling justification. Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right involved and then apply the test accepted by Sir Thomas Bingham MR in R v Ministry of Defence Ex Parte Smith [1996] QB 517 which is not in issue.”
2.6 The limitation on the former absolutism of Wednesbury (a decision could only be reviewed if it were not possible to any decision maker to reach such a decision) has been summarised by Blake and Husain, Immigration, Asylum and Human Rights, (2003) at 283 as:
“The ultimate question [where human rights are in issue] is ‘is the decision justified?’ rather than ‘is it reasonable?’.”
2.7 The Appellant submits that in the present case human rights are in issue, and consequently it is appropriate to review the work of the Tribunal more by reference to “relative reasonable satisfaction” than might otherwise be the case.”
The difficulties which I have with the submissions of the applicant are these. Firstly, and without indulging in a rehearsal of all the relevant facts and findings, I am not satisfied that those to which the Tribunal came could be described as irrational, illogical and not based upon findings or inferences of facts supported by logical grounds. Just because the court when it is pointed in the direction of inconsistencies in a Tribunal’s findings identifies the areas where it might not (with the benefit of that knowledge) have descended into error, it does not follow that the Tribunal when marshalling evidence given to it from various sources (including in most cases a nervous and inarticulate applicant speaking to it through the medium of an interpreter) has also erred. Secondly it seems to me that the very points made by the applicant were made by Kirby J in his dissenting judgment in Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [150] and [170]. But his Honour was not in the majority in that case, where the majority made it clear that a modified version of Wedsnesbury unreasonableness cannot attach to cases which are concerned with finding jurisdictional facts but only to those involving the supposed exercise of discretion. (see S20/2002 at [73] per McHugh and Gummow JJ and [174] per Callinan J.) I am bound by that authority as a member of the court which sits upon the lowest rung of the federal ladder.
In these circumstances I can only dismiss this application and order that the applicant pay the respondent’s costs which I assess in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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