Shofi, Samir v Minister for Immigration and Multicultural Affairs

[1998] FCA 801

FEDERAL COURT OF AUSTRALIA

MIGRATION – refusal of Refugee Review Tribunal to grant refugee status – substantial justice and merits of the case – whether the Tribunal correctly identified the applicant’s claims – error of law – test for well-founded fear of persecution

WORDS AND PHRASES – “well-founded fear” – “speculative” – “persecution” – “social ostracism” – “argued”

Migration Act 1958 – sections 420, 424, 425, 475, 476

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300

Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567

SAMIR SHOFI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 827 OF 1997

EINFELD J
SYDNEY

10 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 827  of   1997

BETWEEN:	SAMIR SHOFI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		JUSTICE EINFELD
DATE OF ORDER:		10 JULY 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed

1. the applicant pay the respondent’s costs of the proceedings

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 827 of 1997

BETWEEN:	SAMIR SHOFI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	JUSTICE EINFELD
DATE:	10 JULY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

FACTUAL BACKGROUND

The applicant, Samir Shofi, is a citizen of Israel who comes from the village of Majdal Shams in the Golan Heights.  He arrived in Australia on 20 August 1990, apparently on a visitor’s visa which was later extended at least twice.  He lodged an application for a protection visa with what is now the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act) in June 1991 but this application appears to have been lost so another one was lodged on 18 November 1991. The applicant was granted permission to engage in employment during the determination of his application. After a delegate of the respondent Minister (the delegate) refused a protection visa on 21 June 1995, the applicant sought a review by the Refugee Review Tribunal on 11 July 1995. The Tribunal hearing took place on 5 February 1997 and on 3 September 1997, it affirmed the delegate’s decision. The applicant now appeals that decision to this Court.

Majdal Shams is a Druze village which also has a few Christian inhabitants.  The applicant and all of his family are ethnically Druze, meaning that they are neither Arab nor Muslim.  Prior to 1967, the Golan Heights were part of Syria so that all of the applicant’s family held Syrian nationality with Syrian passports and ID cards.  During the Six Day war in 1967 the Golan Heights was captured by Israel.  During the Yom Kippur War in October 1973, when Egypt and Syria attacked Israel, Syrian forces occupied the area surrounding Majdal Shams for a short period.  The area was subsequently re-taken by Israel and in December 1981 Israel formally annexed the Golan Heights, although the area remains Syrian territory under international law.  The annexation meant that all residents of the region became entitled to Israeli passports and citizenship without which, the applicant stated, they were not able to access government services such as medical treatment, and work rights in Israel proper were severely restricted.  The applicant’s evidence to the Tribunal was that the Israelis put pressure on the inhabitants of Majdal Shams to take out Israeli citizenship although the idea was strongly opposed by the majority of the Druze in the region.  In 1982 the applicant took out Israeli citizenship and has remained an Israeli citizen since that time.  He entered Australia on an Israeli passport.

THE REFUGEE DEFINITION

Pursuant to sections 5(1) and 36(2) of the Act, a criterion for refugee status is that the applicant is a person towards whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (the Geneva Convention).  Article 1A(2) of the Geneva Convention defines a refugee as any person who:

owing to a 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 GROUNDS OF REVIEW

The applicant relies on the jurisdiction of the Court pursuant to Part 8 of the Act which authorises this Court to review certain decisions:

475(1)Subject to subsection (2), the following decisions are judicially-reviewable decisions:

(a) decisions of the Immigration Review Tribunal;

(b) decisions of the Refugee Review Tribunal;

(c)other decisions made under this Act, or the regulations, relating to visas.

The grounds upon which a person aggrieved by a decision may seek a review of a decision are found in section 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;

(b)that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)that the decision was not authorised by this Act or the regulations;

(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

(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;

(f)that the decision was induced or affected by fraud or by actual bias;

(g)that there was no evidence or other material to justify the making of the decision.

Subsection (2) is not presently relevant.

In the application for review in this Court, the applicant submitted six grounds of appeal.  However, in his written submissions and during the hearing, only 3 grounds were pressed.  They were:

1. The delegate “did not take into proper consideration the evidence and facts presented”.

1. 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, contrary to section 476(1)(e) of the Act.

1. The respondent Minister “did not take into proper consideration the merit of the case as per the applicant’s specific situation”.

This Court can only uphold the appeal if the Tribunal erred in one of the respects prescribed in section 476(1). Suggested factual errors cannot be considered.

GROUNDS ONE AND THREE - SECTION 420

Grounds one and three were dealt with simultaneously by the applicant in his submissions and it is convenient to adopt the same approach. These grounds do not specifically fall within section 476, but the applicant submitted that the Tribunal’s failure to take into proper consideration the evidence and the facts presented and his failure to carry out a review on the merits of the case amounted to a breach of the Minister’s obligations under sections 420 and 425 of the Act. By majority (Davies and Burchett JJ, Whitlam J dissenting) a Full Court of this Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 held that a failure to comply with the requirement in section 420(2)(b) to act according to substantial justice and the merits of the case is a failure to observe procedures required by the Act to be observed in connection with the making of a decision for the purposes of section 476(1)(a) of the Act. Eshetu is on appeal to the High Court, but sitting now as a single judge of the Court, I am bound to follow the decision of the Full Court.

Section 420 relevantly provides:

(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.

Section 424 provides that the Tribunal may make a decision without proceeding to oral evidence, that is, a decision “on the papers”, only if the decision is favourable to the applicant. Section 425 provides:

425   (1)     Where section 424 does not apply, 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.

In Eshetu at 304, Justice Davies said “(o)ne of the necessary elements of [acting in accordance with section 420] is the provision of procedures which are fair and just and are directed to ensuring that the application can be decided according to its substantial justice and merits”. His Honour went on the make the point that “substantial justice” involved more than fair procedures. In Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179, Justice Foster commented that the precise content of the obligation to accord “substantial justice” will necessarily have to be addressed on a case by case basis. It would seem to follow from the majority decision in Eshetu that if the Tribunal does not correctly identify the applicant’s claim, it does not consider his case on the merits.

The Tribunal’s decision on this aspect of the applicant’s case

In its decision, the Tribunal recorded that the applicant’s claims were set out in his written submissions to the Department of 6 June 1991, submitted with his initial application later lost, his interview with the delegate on 26 May 1995, his written submissions to the Tribunal, and his oral evidence given to the Tribunal on 5 February 1997.  From these sources the Tribunal identified six claims made by the applicant as to why and how he will face persecution should he return to Majdal Shams:

1. he might be gaoled by Israeli authorities

2. he might be killed by an organisation which believed that he was working for Israeli security authorities

3. he would have less freedom than he would have in Australia

4. he would find it difficult to get ahead financially compared to his peers

5. in the event that the Golan Heights were returned to Syria as part of any peace agreement, he would not be able to return to his village to see his parents

6. he would suffer economic and social ostracism

The appeal on this aspect of the decision

Throughout the decision-making process, the applicant made additional claims to those which supported his original application to the department, including persecution by Israeli authorities, but he maintained that the claims set out in his original submission remained at all times the basis of his claim for refugee status.  He contended during the hearing in this Court that the six matters identified by the Tribunal do not properly reflect the claims in all the material before the delegate and the Tribunal, and that by addressing itself to these claims, the Tribunal failed to deal with his true case.  He summarised his argument as follows:

1. Whereas the overwhelming majority of local Druze have refused Israeli nationality, he has taken out Israeli citizenship, and has had the consequent political opinion imputed to him.

1. Since his departure, Druze suspicion of those of their community who have become Israeli citizens has worsened, particularly amongst young radical Druze, and he fears for his life if he returns.  He thus made a broad claim of persecution by the Druze people in his village ranging from death threats and thuggery to being shunned socially and economically.  He therefore fears death at the hands of non-Israeli Druze and social and economic ostracism by his own people.

1. In its decision, the Tribunal arbitrarily narrowed the applicant’s fears of persecution by other Druze to two aspects — first, that he fears being “killed by an organisation which believed that he was working for Israeli security authorities”; second, that he fears economic and social ostracism by fellow Druze.

1. By limiting the applicant’s claims to these two elements, the Tribunal belittled and destroyed the applicant’s primary claim before it was considered on its merits.  

1. That the Tribunal set out his claim that he fears being killed by local Druze as his “second” claim indicated that the Tribunal did not correctly identify it as his “primary” claim.

The content of his original application and his interview with the delegate undoubtedly established the fear of death as one, presumably a major, element of his claims.  He then spoke of death threats and veiled threats made to him and his family in passing whispers.  He stated that “it is not unusual for people in similar situations to myself to simply disappear and be found some time later with their throat cut”, although he was not able to offer an example.  In answer to Question 83 of the refugee application, which dealt with contact with family members left behind in his home country, he stated that his father has advised him that “there is great animosity against all things Israeli”.  The applicant concluded from this statement that he is “therefore seen as an agent, or someone who cooperates with the Israeli authorities”.  During the Tribunal hearing he stated that when he was living in Majdal Shams he was considered to be an Israeli spy or agent and affirmed that since his departure this belief has persisted. 

In evidence before the Tribunal, the applicant elaborated on the threats he had received and from whom they came.  He stated through the interpreter that these death threats were not made “face-to-face” but were communicated to him by other people or written on paper and thrown at him (at 13).  Mostly through an interpreter, he gave the following evidence as to where these threats came from (at 15):

A(INTPRTR)   ...there was no particular group who were working or planning against me.  The people who used to do this were always - their planning and their doings were always, you know, supported by parties from outside the area....I don’t have any document to prove it or there were no face-to-face encounters between me and them.  This was always done, you know, in a covert way.

Later the transcript recorded him as saying (at 15):

A(INTPRTR)   ...Everything was done in secret.  That particular party that was...

A(APPLCNT) Unnamed

A(INTPRTR)   It was done, you know, by secret, it has no name and there were no names of any person because everything was done secretly.

It also appears from the delegate’s record that the applicant stated during the interview that “any organisation might cut his throat”.  These statements clearly gave the impression that, in the applicant’s belief, some nameless group of people were plotting, apparently, to kill him.

In contrast to the initial interview with the delegate, when the applicant stated that “the situation in the village has cooled down...people will not do anything”, and that he had never been threatened or physically attacked prior to leaving for Australia, the applicant told the Tribunal that his family’s home had been stoned and the bakery business he had operated for two years in Majdal Shams was wrecked in an attack by children and adults seven or eight months after he had left the area, at a time when it was being run by his brother.  He also told the Tribunal that the houses of “friends who were in the same situation” had been attacked and damaged many times.  It is unclear what he meant by “same situation” because, earlier in his evidence, he had stated that he knew nothing about the circumstances or experiences of the other 20 Druze in his village who had taken out Israeli citizenship.

Much of this evidence dated back to 1991 and before.  In fact the applicant conceded before the Tribunal that he did not know what the current situation was and only thought that there could be “a chance of demonstrations or strikes” and that there was great animosity amongst the younger Druze towards all things Israeli.   Furthermore, in his original written submission, the applicant described the community’s treatment of him as “petty harassment”, expressed fears that he will not be able to find a wife, and envisaged difficulties should he try to set up a business.

The applicant’s fear that he might be gaoled by the Israelis if he returned was based on a visit by an Israeli army officer to his family home two years after his arrival in Australia.  The officer asked for and detained the applicant’s identity card but at no time did he say anything that would indicate the applicant could be gaoled if he returned, and the applicant could not point to any reason why he might be gaoled.

In support of the contention that the Tribunal did not conduct a fair and just review and act according to substantial justice and the merits of the case, the applicant asserted that the Tribunal did not consider his written submissions of 6 June 1991; that it did not listen to the tape of the interview conducted by the delegate on 26 May 1995, choosing to adopt the delegate’s personal record; and that it did not ask him questions on a matter it regarded as important, namely, its reliance on the delegate’s statements as to the content of the interview.

The applicant contended that the Tribunal slavishly followed the delegate’s findings and approaches, even down to adopting the same punctuation in the record of what was said and the order in which it addressed his various contentions. Accordingly he argued that the Tribunal did not set its own priorities and did not make its own independent decision. He submitted, as I believe correctly, that if the Tribunal merely adopts the delegate’s findings, or statements or conclusions as to evidence, it is conducting neither a review of the delegate’s decision nor a review according to substantial justice and the merits of the case. Furthermore, he argued, the obligation of the Tribunal under sections 420 and 425, especially section 425(1)(a), to give the applicant an opportunity to give oral evidence to it if its decision without oral evidence was to be unfavourable to him, is not discharged simply by allowing the applicant to give evidence without being asked questions on matters regarded by the Tribunal to be of importance. According to the applicant, the Tribunal failed to fulfil its statutory obligation in this respect when it failed to inform the applicant of its intended reliance on the statements of the delegate as to the evidence before him and question him about them.

The applicant received a copy of the tape of his interview with the delegate on the day it occurred and he obviously listened to it subsequently, including, as he said in evidence, on the day before the Tribunal hearing.  At the end of the hearing, when he was asked by the Tribunal whether there was anything that it had failed to cover or anything else that he wished to put, the applicant stated, without the assistance of an interpreter, that he had listened to the tape and had read what the delegate had written.  He went on to say:

I would like to add he’s misunderstood me with a few points which it’s converted against my rights.  Maybe he misunderstand me....I didn’t say all my things I have in.  I still have a lot of things to say but, you know, if you don’t ask me it ... [Tribunal Member: “Yes”.] ... is no point to say things that’s happened in, you know, maybe it’s happened in a normal life with other people.

The applicant’s argument that the delegate’s version of the interview did not in fact correctly record what had transpired was thus made known to the Tribunal.  However, he was unable to substantiate his allegation that the delegate had misunderstood him despite an opportunity given to him by the Tribunal.

Conclusions on this aspect of the appeal

I do not believe that the order in which the Tribunal dealt with the applicant’s claims indicated that the Tribunal gave them any particular priority or significance.  Furthermore, in addressing the applicant’s claims of a threat to his life from an unidentified group and the threat of social and economic ostracism from the broader local Druze community, and his fear of being gaoled by the Israeli authorities, with which it also dealt, the Tribunal did not belittle or parody the applicant’s case as suggested.  The Tribunal was justified in addressing the claims under separate headings in light of the fact that the applicant was claiming persecution, ostracism and discrimination from a variety of sources including the Israeli police or military, the Israeli people as a whole, a group of unidentified Druze, and his own local Druze community.

It is true that the claims identified by the Tribunal bear a remarkable resemblance to the claims identified by the delegate such as to lead to a possible impression that a supposedly independent impartial Tribunal did not conduct a proper review on the merits of the case.  It is highly desirable that care be taken in these respects so as to ensure that as much as justice be done, it also must appear to be done.  On the other hand, the Tribunal did conduct a thorough interview with the applicant and it is apparent from the transcript of that interview that the Tribunal had before it the applicant’s original application and all the other materials referred to.  Reading the transcript and decision as a whole, I do not believe that the Tribunal did not take into account all these materials, or make its own decision.  The language might have been more felicitously chosen but it is not, and should not be, surprising that the views of the Tribunal and the delegate coincided for much the same reasons.

There is therefore no basis for concluding that the Tribunal acted on this aspect of the case otherwise than according to substantial justice and the merits of the case within section 420(b). Whatever view was formed as to the relative importance of the suggested social and economic shunning by the local Druze population on the one hand, and his fears based on the murder plot and the acts of violence against his family’s home and bakery on the other, all of these matters were relevant to the determination whether the harassment he could suffer was grave enough to amount to persecution within the Geneva Convention. I find that the Tribunal’s conclusions on the facts were justified by the evidence and other material before it and are not challengeable under sections 420, 425 or 476.

GROUND 2 - ERRORS OF LAW

In submitting that the Tribunal’s decision involved errors of law, the applicant argued that the Tribunal adopted the wrong tests for determining whether the applicant’s fears of persecution for Convention reasons were well-founded.  First, he asserted that the Tribunal wrongly applied the expressions “only a remote chance” and “real chance” to the facts of the case to ascertain whether the applicant’s fears were well-founded.  Second, he contended that the Tribunal used the expression “speculative” in the sense of a prediction as to the future which is an impermissible approach to determining whether a fear is well-founded.  Third, he submitted that the Tribunal confused the meaning, and failed to apply the correct test, of “persecution” to the claim of social ostracism.  Fourth, the applicant asserted that the Tribunal mistook the sworn evidence given by the applicant at the hearing on that subject for  “argument”, when at page 7 of its decision, it stated: “The Applicant argued in the hearing that in Majdal Shams other Druze would spit on him and avoid him” (emphasis added).

“well-founded”

For some years now Australian courts have attempted to define the meaning of “well-founded” as used in the Convention definition of a refugee.  In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Mason CJ stated at 389:

I agree with the conclusion reached by McHugh J. that a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality.

...I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia....If an applicant establishes that there is a real chance of persecution, then this fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.

Justice McHugh stated at 429:

…an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted.

On the other hand, in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 576, Brennan CJ determined that while:

Chan is an important decision of this court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%....to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error.

More recently in Eshetu at 324, Justice Burchett found that the Tribunal had fallen into error by using the word “remote”, its understanding of which it never explained, as a substitute for or replacement of the statutory test “well-founded”.

The decision in Chan was an attempt to define the meaning of “well-founded fear”, by reference to expressions such as “remote chance” and “real chance”, but Guo and Eshetu appear to have decided that while such phrases may be useful in clarifying the term “well-founded”, they should not be used as  substitutes for it.  These decisions are somewhat divergent and leave Tribunals and Courts in the awkward position of trying to give some meaning to the term “well-founded” without actually using the alternative phrases and adjectives, or tests, used in Chan, such as “real” or “not remote”, or “not insubstantial or far fetched”, as substitutes.  Furthermore, if a Tribunal or Court uses the terms “not a remote chance” or “real chance”, it apparently must explain what it means by the chosen expression.  Yet those expressions were designed to explain “well-founded”.  Chan and Guo do not easily stand together.  It must be said that if this is not a purely semantic exercise, the task of applying both is extremely difficult.  Therefore tribunals must be given some latitude as to how they express their reasons. 

“speculative”

The word “speculative” is permissible in the context of assessing whether a fear is “well-founded” if used to represent the lack of probative force of the material before the Tribunal, but is impermissible if used in the sense of prediction, that is, an assessment of the future: Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 277.

Approach to Tribunal decisions generally

The courts have also cautioned that when conducting judicial review of any decision of a Tribunal, it is not appropriate to be “concerned with looseness in the language...nor with unhappy phrasing”: per Neaves, French and Cooper JJ, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, cited with approval by Brennan CJ, Toohey, McHugh and Gummow JJ in Wu at 271. Wu went on to say:

...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.

Because of the importance of their decisions to applicants, and the severe risks and dangers that applicants may suffer if their decisions are wrong, it is obviously important that fact finding tribunals of the kind involved here try to get their wording right so that they are revealing their reasoning process and the precise conclusions they are reaching.  But the courts should be careful to ascertain what the reasons and conclusions really are, and not be pedantic or unduly critical in their approach to the language used.

The Tribunal’s decision on this aspect of the applicant’s case

The Tribunal set out the criteria for a protection visa including the necessary elements of the definition of a refugee.  It first stated its approach to “persecution”:

(n)ot every threat of harm or interference with a person’s rights for a Convention reason constitutes “being persecuted”.  Mason CJ referred to persecution as requiring “some serious punishment or penalty or some significant detriment or disadvantage” [Chan at 388].  Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason.  In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures “in disregard” of human dignity.  Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors

Then it addressed the meaning of “well-founded”:

…the applicant’s fear of persecution for a Convention reason must be “a well-founded” fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a “well-founded fear” of persecution under the Convention if they have a genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.  A “real chance” is one that is not remote or insubstantial or a far-fetched possibility.

As to the applicant’s claim that he had a “well-founded fear” that he might be killed by an organisation which believed he was working for Israeli security authorities, the Tribunal said:

In relation to the Applicant’s second claim - that he might be killed by an organisation which believed that he was working for Israeli security authorities - I find there is only a remote chance he will face persecution for this reason.  The Applicant was unable to name any particular individual, political party or group who might kill him because of his imputed political opinion.  Moreover, the Applicant said in the primary interview that he has never been threatened or physically attacked prior to leaving for Australia, despite living for many years among those who he now fears will threaten his life.  He also stated at that hearing that “the situation in the village has cooled down...people will not do anything”.  These facts lead to the conclusion that this claim is speculative and is not well-founded.

In addressing the applicant’s claim that he might be gaoled by Israeli authorities, the Tribunal assessed the evidence of a visit by the Israeli army officer to his family home two years after he had come to Australia.  The Tribunal found that the fact of the officer’s visit “does not constitute proof of a well-founded fear of being gaoled”, concluding on this point:

Since there is only a remote chance that the Applicant will suffer persecution for this reason, I do not have to consider if the persecution the Applicant fears arises for Convention reasons.  I therefore find that the Applicant’s fears of being gaoled by Israeli authorities is not-well-founded...

In its conclusion on the claim based on social ostracism, the Tribunal stated (sic):

I find that there is not sufficient evidence to support the claim of social ostracism.  While such ostracism might amount to selective harassment in this case, I find that the gravity of the harm is not sufficient to amount to persecution.  I therefore find that the Applicant’s fears that he would face economic and social ostracism if he returns to his town in Israel is not well-founded and does not constitute grounds to finding him a refugee.

Conclusions on this aspect of the appeal

With respect, I believe that the Tribunal married the diverse concepts arising from Chan and Guo with significant skill.  While finding that there was “only a remote chance of persecution” based on the murder plot, the Tribunal’s ultimate conclusion on the facts was that the fear of persecution was not “well-founded” because the claim on which it was based was “speculative”.  Immediately prior to its use of that word, the Tribunal had gone through the evidence on the matter.  It concluded that a finding that the applicant’s claim that he could be killed on his return to Israel was without a factual basis.  That these facts led the Tribunal “to the conclusion that this claim is speculative” clearly indicated that it used the word to describe the lack of probative force of the evidence.  It was thus a valid approach to and definition of its duty.

The Tribunal’s opinion on the Israeli gaoling claim was that there was no evidence to support a well-founded fear of persecution whichever of the clarifications offered by the courts is used.  If its use of words “only a remote chance” in that connection was unfortunate, and I am by no means convinced that it was, it cannot be considered an error of law.  For even if the use of this expression as the only test for whether a fear is “well-founded” was erroneous, the facts as found by the Tribunal, which in substance were largely admitted by the applicant, could not possibly support any other conclusion than that his fear in this respect was not well-founded.  There is no likelihood at all that another fact-finding Tribunal would reach a different decision.  The “merits and substantial justice” test in Eshetu was therefore met.

On the social and economic ostracism claim, the Tribunal correctly recited the test for “persecution” as stated by Mason CJ in Chan.  Whatever criticisms could be made of the wording used — and I am sympathetic to the difficulties which the Tribunal faced — it is obvious from the words used that it was applying the correct test of “persecution”.  The Tribunal found that the social ostracism experienced by the applicant might amount to selective harassment, but that the disadvantage or harm that the applicant fears he would face if he returns to Israel was not sufficiently grave or serious to amount to persecution.  The applicant asserted that the Tribunal should have defined what level of gravity was required.  However, in view of its direct quotation of the passage from Chief Justice Mason’s judgement in Chan, it is realistic to assume that the Tribunal used the standard “some serious punishment or penalty or some significant detriment or disadvantage” against which to measure the harassment likely to be suffered by the applicant should he return to Israel.  The applicant was unable to satisfy the Tribunal that the alleged ostracism would be serious, in the sense of “likely to be carried out and effective”, and the Tribunal found that there was no reason why he should not be able to earn a living should he return to Israel.  As a result, it concluded that whilst the social ostracism he might experience could amount to selective harassment, the gravity of this harassment was not sufficient to constitute persecution.  This treatment of the matter manifested no legal error.

The other suggested error in the Tribunal’s treatment of the social ostracism claim arising from its use of the word “argued” instead of the word “testified” is purely semantic.  It is perfectly clear that the Tribunal’s conclusion — that the gravity of the harm was not sufficient to amount to persecution — assumed or accepted the truth of the applicant’s evidence that people would spit on him and avoid him.  There was no error of law in this approach.

CONCLUSION

Nothing in the Tribunal’s reasoning suggested that it did not accept the truth of the applicant’s evidence on his own experiences.  Its decision to affirm the primary decision was based on the fact that the applicant’s claims accepted as truthful did not entitle him to refugee status under Geneva Convention.  For these reasons I find that the applicant has not made out any of the grounds for disturbing the decision of the Tribunal.  The application will be dismissed with costs.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld

Associate:

Dated:            10 July 1998

Counsel for the Applicant:	Mr J.R. Young
Solicitor for the Applicant:	Mr Simon Diab of Johnston Vaughan Solicitors
Counsel for the Respondent:	Ms R. Cheetham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 November 1997
Date of Judgment:	10 July 1998