SBTF v Minister for Immigration
[2007] FMCA 1142
•8 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBTF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1142 |
| MIGRATION – Review of Refugee Tribunal decision – refusal of protection visa – whether Tribunal properly considered whether applicant was at serious risk of harm if returned to Bahrain as a result of his suffering psychological damage as a result of cumulative effects of persecution – whether Tribunal properly considered real chance test of applicant suffering persecution – no jurisdictional error found – application dismissed. |
| Migration Act 1958, ss.56; 91R, 430, 474, 476 |
| SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC80 Applicant AV v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration Multicultural Affairs v Ibrahim (2000) 204 CLR 1 Minister for Immigration v Yusuf (2001) 206 CLR 323 Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 Dranichnikov v Minster for Immigration & Multicultural Affairs (2003) 197 ALR 389 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Attorney General (NSW) v Quin (1990) 170 CLR 1 |
| Applicant: | SBTF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG321 of 2006 |
| Judgment of: | Brown FM |
| Hearing date: | 14 June 2007 |
| Date of Last Submission: | 14 June 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 8 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Charman |
| Solicitors for the Applicant: | Westside Community Lawyers |
| Counsel for the first Respondent: | Mr Tredrea |
| Solicitors for the first Respondent: | Australian Government Solicitor |
| Counsel for the second Respondent: | Mr Tredrea |
| Solicitors for the second Respondent: | Australian Government Solicitor |
ORDERS
All applications are dismissed.
The applicant pay the respondent’s costs fixed in the sum of four thousand five hundred dollars ($4,500.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG321 of 2006
| SBTF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Bahrain, arrived in Australia on 7 January 2006. On 9 February 2006, he applied to the first respondent “the Minister” for a protection visa (Class XA). In support of his application, he stated that he had been involved in protesting against the Bahraini Government over a number of years. This had resulted in his incarceration in 1997, for a period of 13 months. During this period of imprisonment, he claimed to have been tortured.
He further stated that he had been involved in a peaceful protest, in Bahrain, in November 2005. After this protest, his younger brother had been arrested by the authorities. This had resulted in the applicant going into hiding for approximately one month and reaching the view that his safety was at risk, if he remained in Bahrain. Accordingly, he left Bahrain for Australia on a validly issued visitor’s visa.
It is the applicant’s position that an arrest warrant has been issued for him in Bahrain, which requires him to present himself to the Security Directorate in Bahrain. In his statement, in support of his application for a protection visa, the applicant states as follows:
“I believe that I would be incarcerated as I was before and tortured and not charged, not brought before a court. These things are happening in my country and I am most fearful that if I return, I would face death. I am sure that if I returned to Bahrain I would be killed. I would be killed by the Government officers who have told me they would do so and I believe their threats.”[1]
[1] See Case book at page 40.
Accordingly, it is the applicant’s position that he is a person to whom Australia owes protective obligations pursuant to the Refugee’s Convention, to which Australia is a signatory. Pursuant to the Convention, a refugee is any 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.”
The provisions of the Refugee Convention have been incorporated into Australian domestic law.[2] On 13 June 2006, a delegate of the Minister determined that Australia did not owe any protective obligations to the applicant and accordingly he was not entitled to a protection visa. The delegate found as follows:
“I do not accept that the applicant has a well founded fear of persecution at the hands of the authorities in Bahrain on the basis of the claims submitted. I do not consider that his stated involvement in political activity will lead to him being targeted for serious harm or mistreatment upon return. I have not accepted his claim to have been detained for thirteen months in 1997 and in any case he has not indicated that he experienced any particular difficulties in Bahrain after 1998. I consider that he has had only very limited low profile involvement in political activity in Bahrain and that his activities would not have attracted serious adverse attention from the authorities.[3]
[2] See Migration Act 1958 at section 56(2)
[3] See Case Book at page 128
On 10 November 2006, the Refugee Review Tribunal “the RRT” affirmed the delegate’s decision not to grant the applicant a protection visa. The RRT held that the applicant did not have a well founded fear of persecution for reasons of an imputed political opinion or a political opinion. Accordingly, it was satisfied that the applicant was not a person to whom Australia owed protection obligations under the Refugee’s Convention.
On 5 December 2006, the applicant filed an application in this court, pursuant to s.476 of the Migration Act (“the Act”), alleging that the decision of the RRT made on 10 November 2006 disclosed a jurisdictional error. In particular, the applicant alleges the Tribunal fell into jurisdictional error as follows:
“1.That the Second Respondent exceeded its jurisdiction in making its decision to affirm the respondent’s decision;
2.That the Second Respondent constructively failed to exercise its jurisdiction in arriving at its decision.”[4]
[4] See Application filed 5 December 2006
As a result, the applicant seeks that the constitutional writs of certiorari, prohibition and mandamus be issued by the court to quash the decision of 10 November 2006 and to require the decision to be redetermined by the RRT, according to proper principles of law.
The decision which the applicant seeks to review is a “privative clause decision” as defined by s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia[5] has held that the provisions of s.474 do not prevent the review of decisions made by the RRT which are affected by jurisdictional error or have been made in bad faith.
[5] Plaintiff S157/2002 v Commonwealth of Australia
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power.[6]
[6] See Craig v South Australia (1995) 184 CLR 163
Because the applicant is seeking a protection visa, he is not to be identified in these proceedings, pursuant to the provisions of section 91X of the Migration Act 1958. As a result he has been given the pseudonym of “SBTF”.
The applicant’s claims and evidence
The applicant was born in Sitra, Bahrain on 10 December 1980. He is a Shia Muslim. He has had past employment as a driver and more recently as a fisherman. In 1997, he claims to have been imprisoned for a period of 13 months, following his involvement in an anti-government demonstration. During this period of imprisonment, he claims to have been tortured by government authorities. He was not charged with any offence before or after his incarceration.
On 28 November 2005, the applicant claims he took part in a “peaceful” protest. After the protest, he returned home and went out to sea, fishing. When he returned home, he discovered that his brother had been arrested by the authorities. As a result, he went into hiding himself for about a month. He learnt from his family that it would be dangerous for him to return home. He claims that threats were made against him by three government security officers. As a result, he left Bahrain on a visitor’s visa, with a friend Mr X, with whom he had been working as a fisherman.
Since his arrival in Australia, the applicant claims to have been in contact with his family in Bahrain, who informed him that an arrest warrant had been left for him at his home. He arranged for his family to send him this document in Australia. As a result of the warrant and his previous experience in Bahrain, the applicant claims to be fearful that he will be killed by government officers, if he is returned to Bahrain.
It is the applicant’s case that, as a Shia Muslim, he is subject to discriminatory conduct by the Sunni controlled government and is treated as a “second-class” citizen in Bahrain, despite the fact that Shia are the majority in the country.
In a submission to the RRT, forwarded on 5 September 2006, the applicant claims to have a well founded fear of persecution, in Bahrain, due to his political beliefs, his imputed political opinions and his religious beliefs, stemming from the fact that he is a Shia Muslim.
The applicant relied on a report and evidence from Dr Michael Lee, in support of his claim that he was at risk of serious harm if returned to Bahrain. In his report, Dr Lee described the applicant as:
“a much … damaged person, who had experienced serious threats/abuses to his person. He has a fragile personality, which would not survive any further harsh treatment.”[7]
[7] See Case Book at page 258
In his evidence, Dr Lee described the applicant as a “completely broken man who was unable to communicate anything without shaking.” Dr Lee took a history from the applicant that he had been “badly treated, treated dirtily and humiliated”, [8] whilst in custody in Bahrain.
[8] See Case Book at pages 290-291
The Tribunal’s findings and reasons
Pursuant to s.430 of the Migration Act, the Tribunal is required to prepare a written statement that sets out its decision and the reasons on which it is based. In particular, the Tribunal is required to set out findings on any material questions of fact and refer to the evidence or other material on which those findings of fact are based.
At the outset of its decision, the Tribunal set out the four key elements, provided by the Convention’s definition of refugee, which an applicant for refugee status must satisfy. These can be summarised as follows:
·The applicant must be outside his or her country;
·The applicant must fear persecution, which involves serious harm to him or her and which must be systemic and discriminatory in nature;
·The persecution, which the applicant fears, must be for one or more of the reasons set out in the Convention definition namely: his or her race, religion, nationality, membership of a particular social group or political opinion;
·The applicant’s fear of persecution must be well-founded. Accordingly the fear held by an applicant must be objectively as well as subjectively based, resulting from a real chance that the persecution feared will actually occur to the applicant concerned.
The RRT accepted the following contentions put forward on the applicant’s behalf:
·The applicant is a Shia Muslim and that Shia’s are discriminated against in Bahrain. It found that this discrimination was severe but not of sufficient seriousness to amount to serious harm for the purposes of the Refugee Convention.
·The Tribunal was prepared to accept that the applicant had been detained in 1997 and suffered torture. This was consistent with country information available to it, which indicated that opponents of the regime in Bahrain at the time had been brutally suppressed.
·The Tribunal did not accept that the applicant had been politically active between 1998 and 2003.
·The Tribunal accepted that the applicant had a “relatively brief attendance at a peaceful demonstration in 2005”. It found that the applicant did not have strong political convictions.
·The Tribunal did not accept that a proper warrant had been issued for the applicant’s arrest or that the police in Bahrain wished to arrest the applicant.
·As a result of these findings, the RRT found it was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugee’s Convention. In particular, it concluded as follows:
“The Tribunal must look at whether the applicant has a well founded fear of persecution in the reasonably foreseeable future for reasons of an imputed political opinion or a political opinion. The Tribunal accepts that the applicant was involved in a protest when he was aged 17 in 1997 and was arrested and detained for 13 months and tortured. The Tribunal acknowledges that these experiences may have given the applicant a subjective fear of persecution. The Tribunal does not accept that the applicant has been involved in any political activities since that time apart from the relatively brief attendance at a peaceful demonstration in 2005 and that had no consequences. The applicant appeared to be someone who showed very little interest in the political events that were occurring in Bahrain. The applicant did not appear to have strong political convictions and the Tribunal does not accept that if he returned to Bahrain he would be politically active. The Tribunal does not accept that it is fear of persecution that is preventing him from being involved in political activities rather it appears to be a lack of interest. The Tribunal notes the arrest and torture of protesters in Bahrain that has occurred since 2000. It accepts that protesters are still arrested and occasionally ill treated, but not on the scale that they were in the 1990s. However, this, coupled with the fact that the applicant is not politically active and does not appear even interested in political matters, leads the Tribunal to the conclusion that there is no real chance that the applicant would be politically active if he returned to Bahrain and would come to the attention of the authorities and would be persecuted for reasons of an imputed political opinion or a political opinion. The Tribunal finds that the applicant does not have a well founded fear of persecution for reasons of an imputed political opinion or a political opinion.”[9]
[9] See Case Book at pages 296-297
The applicant’s submissions
Mr Charman, counsel for the applicant, expanded upon the somewhat bald grounds for the application, in his written submissions. In essence, he contends that the Tribunal fell into jurisdictional error by failing to properly consider whether or not the applicant was at risk of “serious harm” , if he was compelled to return to Bahrain. It is Mr Charman’s contention that the RRT failed to properly exercise its jurisdiction under s.91R of the Migration Act.
The relevant portions of s.91R read as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.”
Essentially, Mr Charman contends that the RRT has effectively failed to construe its jurisdiction, under s.91R, by failing to consider the “cumulative” consequences of the applicant’s experiences between 1997 and now, particularly its potential to cause him psychological harm. In the terminology adopted by Mr Charman, the applicant contends that the RRT “erred in failing to consider a significant integer of the applicant’s harm, that of serious harm being psychological harm”[10].
[10] See applicant’s submissions at paragraph 5
I accept that the potential for psychological injury can amount to serious harm for the purposes of s.91R. This was an issue considered by the Full Court of the Federal court in SCAT v MIMIA.[11] The applicants in that case were Mandeans, who claimed persecution in Iran as a result of their religious beliefs. In Iran, Mandeans are a significant minority and are regarded by some of the Muslim majority in that country as being unclean.
[11] SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC80
There was some doubt in SCAT whether the applicant concerned had put forward a clearly articulated claim of being at risk of psychological harm, if returned to Iran. Material had been provided to the RRT regarding treatment received by Mandeans from Muslims both in Iran and in detention within Australia. The majority of the Full Court in SCAT (Madgwick and Conti JJ) said as follows:
“The material extracted above in our opinion shows that a claim of potential psychological harm was explicitly made by the Refugee Advice and Casework Service (Australia) Inc ("RACS"). The reference, in the applicant's advisor's submission, to "eventual destruction of emotional wellbeing" seems to make that clear.
We do not find it persuasive on the issue of whether there was a claim made to the Tribunal concerning psychological harm that there was not a complaint, in terms, directly made to the Tribunal by either the appellant or his wife that either of them or any of their children was sustaining psychological harm.
The Tribunal Member had a legal duty, implicit in the notion of his obligation to "review" the decision of the respondent's delegate, to consider this matter. The claim as put relevantly involved the assertion that:
(a)there was serious discrimination against the appellant and his family as Mandeans; and
(b) the discrimination, because of its potential to cause serious psychological harm, amounted to serious harm within the Convention definition of a refugee and within s 91R of the Act.
These were not merely peripheral matters. They were central to a proper assessment of the appellant's case.”
It is the applicant’s contention that, in the form of the letters and evidence from Dr Lee, the applicant has clearly put forward a claim of risk of suffering potential psychological harm, which must be considered within the overall context of the other aspects of the case, namely that the RRT accepted that he had suffered torture whilst being in prison in Bahrain in 1997/1998 and some protestors against the government in that country are still arrested and occasionally ill treated.
It is Mr Charman’s submission that is it axiomatic that a person with such experience is likely to be at risk of suffering significant psychological harm, if returned to the country where he had been so tortured in the first place. As such, to use the terminology of the Federal Court in SCAT, these were not “peripheral matters” but rather their consideration was central to a proper assumption of jurisdiction. Mr Charman contends that it is clear from the record that the RRT failed to consider this aspect of the applicant’s case and so fell into jurisdictional error in the sense articulated by Allsop J in Htun[12] and by Madgwick and Contii JJ in SCAT, as referred to above.
[12] Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
In Htun, a case dealing with a Burmese national of Karen ethnicity, who was seeking a protection visa, Allsop J said as follows:
“The “participation in the Karen community and the political groups” could be said to have been dealt with by the Tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend and Minister for Immigration and Multicultural Affairs v Yusuf.”
Mr Charman drew my attention to various authorities, where the concept of serious harm, within the context of persecution, for the purposes of section 91R, has been considered. It has been taken to include denial of access to food, clothing and medical supplies;[13] denial of access to employment, to the professions and to education; restriction of access to such democratic institutions as freedom of speech, assembly, worship and movement;[14] and sustained discriminatory conduct against individuals, who are unable to protect themselves by resort to legal process.[15]
[13] See Applicant AV v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 per McHugh J at 258
[14] See Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 431
[15] See Minister for Immigration Multicultural Affairs v Ibrahim (2000) 204 CLR 1
It is Mr Charman’s contention that, when these authorities are considered, the RRT took an unacceptably narrow view of section 91R in determining whether there was a serious risk of the applicant suffering persecution, if compelled to return to Bahrain. To use Mr Charman’s expression, the Tribunal “dealt with bits and pieces of this man’s experience.” It accepted that he was likely to receive less favourable treatment in Bahrain because he was a Shiate; it accepted that he had been tortured in 1997/1998; it also accepted that he had had some limited involvement in the political demonstration of 2005. However, Mr Charman argues that the Tribunal failed to consider the cumulative affects of all these matters and, in particular, whether as a whole they could amount to persecution within the meaning of section 91R. As such, it did not deal with all the “component integers” of the applicant’s claim that he was at serious risk of harm if returned to Bahrain.
It is Mr Charman’s further contention that the RRT has failed to exercise its jurisdiction in its application of the test as to whether the applicant’s fears of future persecution in Bahrain are well founded for the purposes of article 1A of the Refugee’s Convention. The Convention requires that such a fear be well founded. This connotes that the fear an applicant holds cannot be subjectively based alone but must be assessed by some objective standard. In Chan Mason CJ held that a well founded fear of persecution was one where there was a “real chance” of such persecution occurring. In the same case McHugh J held that a real chance of persecution excluded a “far fetched possibility” of such persecution but considered that a ten percent chance could amount to a well founded fear of persecution.
Mr Charman argues that the RRT, in the present case, has failed to properly apply the “real chance” test so far as the applicant’s situation is concerned in respect of the possibility of him suffering persecution in the event of his return to Bahrain. Again, this contention turns upon Mr Charman’s argument that the RRT failed to consider the cumulative affects of the applicant’s prior experiences in Bahrain, in reaching its conclusion that the applicant’s fears of persecution were not well founded.
Given that the Tribunal accepted that the applicant had been imprisoned and tortured in 1997/1998 and its explicit finding that “protestors are still arrested and occasionally ill-treated”[16], Mr Charman argues the RRT has applied a test of whether the applicant is certain to be the victim of a further act of persecution rather than the correct test, which was whether there was a real chance of such persecution, which is something more than a remote or far fetched possibility.
[16] See Case Book at page 297
Finally, Mr Charman argues that the RRT has fallen into error by failing to ask itself to ask the right jurisdictional question regarding the risk of the applicant suffering persecution, as a result of political beliefs likely to be imputed to him by the Bahraini authorities. He argues that it is clear from a reading of the RRT’s decision that it has asked itself the question “is the applicant likely to be politically active, if returned to Bahrain, and so come to the notice of the authorities there.” Given its finding that the applicant was not politically active for a number of years after his release from prison, the Tribunal has answered this question in the negative.
However, Mr Charman argues that the correct question, to which the RRT should have addressed itself, was whether the Bahraini State (or Authorities within it) would regard the applicant as being a politically active person, given that he had previously been imprisoned in Bahrain because of his political activities. The test not being whether the applicant himself was likely to be politically active, but rather whether the state would potentially regard him as a political person because it had previously so adjudged him, as was evident from the fact that he had been arrested in the past for political activities in Bahrain.
As the Tribunal has clearly asked itself this question, Mr Charman contends that there is a self apparent jurisdictional error, within the terms described by the High Court in Craig (supra) and Yusuf.[17] Accordingly, the RRT did not have the authority to make the decision which was made, as it did not have the jurisdiction to make it.
[17] Minister for Immigration v Yusuf (2001) 206 CLR 323 at 351
The respondent’s submissions
Mr Tredrea, who appeared for the Minister, contended that it was apparent that the applicant had failed in the proceedings before the RRT because the Tribunal had formed an adverse view of his creditability, particularly in regards to his claims about the arrest warrant and his fear of pursuit by Bahraini Government officials. Mr Tredrea pointed out that findings of credibility were the functions of the primary decision maker and no detailed reasons need be provided as to why a particular witness was or was not believed by such a decision maker.[18]
[18] See Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 at paragraph 67 per McHugh J
It is also Mr Tredrea’s submission that the RRT dealt with all the claims put forward by the applicant, as detailed by him in his original application for a protection visa and his subsequent statutory declaration submitted in response to a request from the Tribunal to provide it with further information.[19] In particular, Mr Tredrea contends that the applicant did not make any claim that he was likely to be liable to “cumulative persecution”, if returned to Bahrain. In Mr Tredrea’s submission discrimination or unfavourable treatment, such as is accorded Shia Muslims in Bahrain, does not amount to persecution within the meaning of s.91R of the Act.
[19] See Case Book at pages 254-256
In particular, Mr Tredrea submitted that it could not be demonstrated that the RRT had failed “to respond to a substantial, clearly articulated argument relying upon established facts.”[20] Mr Tredrea distinguished the circumstances of this case from that which prevailed in SCAT in that the applicant in the present case had not put forward any claims of being at risk of suffering psychological harm or cumulative persecution. As such, it could not be said that there had been a failure to consider his claims or otherwise deny him natural justice.
[20] See Dranichnikov v Minster for Immigration & Multicultural Affairs (2003) 197 ALR 389
Mr Tredrea pointed to the fact that, although in his submission the applicant had not clearly raised issues of his potential to suffer psychological harm, if returned to Bahrain, the RRT had in fact considered material relevant to the issue in its findings.[21] Mr Tredrea also pointed to the fact that the RRT had accepted that the applicant had been tortured, whilst in custody, in 1997/1998. Accordingly, he argued that the Tribunal had considered issues of psychological harm, as tangentially raised by the applicant.
[21] See Case Book at pages 290.9; 293.7; and 295.3
It was Mr Tredrea’s further submission that the issue of imputed political belief had been considered by the RRT and had been dismissed by it as a result of its findings regarding the credibility of the applicant, particularly in terms of its disbelief of him regarding the arrest warrant. It is Mr Tredrea’s submission that the Tribunal has correctly considered the issue of imputed political opinion to the applicant and has rejected it, which was part of its fact finding exercise.
Discussion and Conclusions
As Allsop J pointed out in Htun the decision of the RRT is not to be read over-finely by the court, or with an eye too keenly attuned to the perception or error. A common sense approach as to what the Tribunal was saying is called for.[22] The court must be cautious about possibly entering upon a merits review of the RRT’s decision. In Minister for Immigration & Ethnic Affairs v Wu Shan Liang[23], the High Court said, in reference to such principles:
“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. In the present context, 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.”
[22] See Htun v MIMA (supra) at 258 referring to Collector of Customs v Pazzolanic (1993) 43 FCR approved in Wu Shan Liang referred to below.
[23] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
The distinction between the merits of a particular administrative decision and its legality is sometimes a fine one. It is the function of this court to determine whether the decision of the RRT was within its legal powers. It is not the function of the court to examine the merits of that decision. In Attorney-General (NSW) v Quin Brennan J said as follows:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”[24]
[24] See Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35/36 referred to in Wu Shan Liang (supra)
Similarly, it is the function of the administrative tribunal concerned to make findings about the credibility of any witness or piece of evidence involved and not for the court to substitute its own view or finding in this regard. In Durairajasingham[25] the Tribunal concerned found one part of the particular applicant’s claim to be “utterly implausible”, which McHugh J categorised as:
“… this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”
[25] Ex parte Durairajasingham (supra) at 423
In this case, the RRT started the decision with the correct legal principles to be applied[26]. It ended its decision with the observation that it was required to examine “whether the applicant has a well-founded fear of persecution in the reasonably forseeable future for reasons of an imputed political opinion or a political opinion”[27]. It seems to me therefore that the Tribunal started and finished with the correct test. Accordingly, to use the phraseology of the High Court in Wu Shan Liang it is only the “phraseology in between” which provides the basis as to whether or not the Tribunal has misconstrued its jurisdiction. Essentially, whether it has failed to consider the integers of the applicant’s claims.
[26] See Case Book at 284-286
[27] See Case Book at page 196
The most significant of the applicant’s criticisms of the RRT’s decision is that it has misconstrued the meaning of persecution, in its deliberations, and this has lead to a jurisdictional failing. In particular, the Tribunal failed to consider whether there was a real chance of the applicant suffering, if returned to Bahrain, harm in a psychological sense, because it had not considered all the component parts of the applicant’s experience to date, in Bahrain and their cumulative consequences for his mental makeup. Central to this assertion was the evidence of Dr Lee.
The applicant does not appear to have placed significant emphasis on Dr Lee’s evidence before the Tribunal, apart from using it to support his claims of having suffered torture in Bahrain in the past, as demonstrated by his presentation to Dr Lee. Dr Lee’s evidence was also apparently utilised to demonstrate why the applicant may have had difficulty in recollecting past events and answering questions in the Tribunal process. In this regard, there is in my mind considerable merit to Mr Tredrea’s submission that the applicant did not specifically articulate the ground that his past experience made him particularly at risk of suffering serious harm, if returned involuntarily to Bahrain as a result of the cumulative effects of persecution.
However, the Tribunal accepted that the applicant, as a Shia Muslim, was likely to face discrimination in Bahrain as a “fact of life”. This discrimination included exclusion from the political process; a level of residential segregation; and severe restrictions regarding access to government employment. The Tribunal did not accept that Shia Muslim’s per se were, at the present time, likely to be subject to random acts of violence, imprisonment and torture in Bahrain.
The Tribunal accepted that the applicant had been previously imprisoned in 1997 and had suffered torture then. This was found to be consistent with country information, which indicated that torture was endemic in Bahrain, particularly between 1994 and 2000. The Tribunal also found that the use of torture in Bahrain had largely ceased in 2005, although, as previously noted, it did accept that the protestors were still occasionally arrested and “ill treated”.
The RRT made findings, as it was entitled to do, regarding the applicant’s level of knowledge of recent political events in Bahrain and the likelihood of him holding strong political convictions. On the basis of his credibility, in response to questioning about such issues, it concluded that he did not have strong convictions about political and human rights issues in Bahrain. Of some significance, in respect of Mr Charman’s submissions to the court, the Tribunal also found that the applicant’s detention in 1997 was unlikely to extenuate his profile with the Bahraini authorities, in the absence of further political activity on his part in the period since.
On the basis of the applicant’s credibility, the Tribunal determined that the applicant had not been politically active between 1998 and 2003. It was dubious about his involvement in protests between 2003 and 2005 and expressed some disquiet about the applicant’s account of his involvement in the demonstration of 2005, which occurred prior to his departure for Australia. These matters caused the Tribunal to indicate that it did “not accept that this sort of involvement, having not been involved in any sort of political activity since 1997 and no political profile, would have resulted in the ramifications the applicant claims.”[28] This finding appears to be me to be crucial.
[28] See Case Book at page 296
In its fact finding role, the Tribunal rejected the validity of the arrest warrant, which the applicant claimed had been issued in respect of him. It also rejected the applicant’s claim, that a police officer, who had been implicated in his arrest in 1997, threatened him in 2005. It found these assertions lacked credibility.
The Tribunal was required to consider whether the applicant was at risk of persecution, for a Convention reason, if returned to Bahrain involuntarily. Such persecution must involve potentially serious harm occurring to the applicant concerned and must be based on a real chance of it occurring. The Tribunal was required to consider all relevant facts put forward by the applicant in respect of these issues, in support of his claim, otherwise it potentially risked failing in its jurisdiction. In my view, the Tribunal did properly complete the task required of it and did consider all the integral aspects of the applicant’s claim regarding his potential to be at risk of persecution in Bahrain.
The Tribunal was clearly aware of the societal issues likely to confront the applicant, as a Shia Muslim, in Bahrain. It was also aware of the personal issues confronting the applicant, as a person who had previously been imprisoned and tortured in Bahrain in 1997. As a result of these matters, it reached the conclusion that subjectively the applicant might have a fear of persecution, if returned to Bahrain. However, the task of the Tribunal was to consider whether that fear of persecution was well founded. This necessarily involves an objective assessment, independent of an applicant’s personal fears. The fears must be “well-founded”.
In assessing this objective standard, the Tribunal looked to the current situation in Bahrain in the context of its finding that the applicant had not recently been involved in political activity, apart from a brief attendance at the demonstration of 2005 and did not have an interest in politics per se. In assessing the objective chance of persecution, the Tribunal can only look to existing circumstances in the country in question. There must be a nexus between the risk of serious harm occurring to an applicant for refugee status and the Convention reason claimed.
It is implicit in the Tribunal’s findings that it did not accept that the applicant was at risk of harm, in Bahrain, for a Convention reason. It found specifically that he would not be persecuted for reason of an either imputed political opinion or his own political opinion. This was a necessary first step and essential pre-condition before the Tribunal could turn to the question of the nature of the harm likely to be suffered by such an applicant and whether it could be considered to be serious. Objectively the Tribunal considered the applicant would not be persecuted because of his political beliefs. It did not accept that, given his limited involvement in the demonstration of 2005, he would have potential beliefs imputed to him. This was a function solely in the domain of the Tribunal and was relevant to its assessment of whether there was a real chance of the applicant suffering any form of persecution if returned to Bahrain.
It is the applicant’s complaint that the Tribunal failed to consider the cumulative consequences of the applicant’s experience in assessing the degree of his fear that he might suffer serious harm, if returned to Bahrain. On a subjective basis, the Tribunal accepted that these were relevant considerations. It said as much. However, in my view, the particular vulnerabilities of the applicant are not relevant to the objective assessment of the risk of serious harm. The fact that subjectively an applicant’s fears are likely to be intensified because of past adverse involvement with the state does not necessarily intensify the objective level of the fear and so increase the real chance of persecution resulting.
The Tribunal accepted that subjectively the applicant was likely to be fearful, if returned to Bahrain, because of what had happened to him previously. It is, I think, implicit in that finding that it accepted that potentially this was likely to have psychological ramifications for the applicant. Fear, by its nature, obviously has implications for the psyche. But, on an objective basis, at the present time, the Tribunal did not accept that the applicant was likely to suffer persecution, in Bahrain, for a Convention reason. This was essentially because the political situation in Bahrain had substantially changed since 2005. The Tribunal specifically rejected the contention that the applicant’s detention in 1997 would have given him a more significant profile with the Bahraini authorities at the present time, particularly in the absence of political activity in the intervening period. In my view this was part of its fact finding exercise.
In my view, in assessing whether there was a real chance of the applicant suffering persecution in Bahrain, the Tribunal was entitled to consider whether the applicant was likely to engage in political activity, if returned to Bahrain. It concluded he was not because of his general disinterest in political matters. This level of political profile is obviously relevant to considerations of imputed political views, as is the period which has elapsed since political involvement occurred. The subsidiary question, which the applicant claims was not asked, was whether the Bahraini authorities would potentially regard him as being a political activist, because of his previous activities. It seems to me that the Tribunal did conclude that the Bahraini state would not regard him so and this was a factor in it reaching the conclusion that no political views would be imputed to him.
In assessing the real chance of persecution facing the applicant, the Tribunal noted that “protestors” are still arrested and “occasionally” ill-treated. It is implicit in the Tribunal’s findings that it did not consider the applicant to be such a protestor and further it did not consider that the likelihood of ill-treatment was substantial. Overall, I am satisfied that the Tribunal applied the correct test, in the applicant’s case and rejected the chance of him suffering persecution in Bahrain for political reasons as being speculative and far fetched.
I consider the RRT did properly consider the applicant’s claim put before it and all its necessary integral components and rejected it. Accordingly, there is no demonstrated jurisdictional error.
For all these reasons, it must follow that the application should be dismissed. The respondent has sought an order for costs and in my view such an order is appropriate. I assess costs in the sum of four thousand five hundred dollars ($4,500.00). For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 8 August 2007
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