SZDTZ v Minister for Immigration & Anor

[2005] FMCA 1392

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTZ v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1392

MIGRATION – RRT decision – Lebanese Christian with bullet in head – Tribunal’s conclusions on history – failure to apply real chance test – whether test applies to assessment of subjective fear – error in consideration of Convention nexus for absence of effective protection – matter remitted.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 430(1)(c), 483A, Pt.8

Abebe v Commonwealth (1999) 197 CLR 510
Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296

Benjamin v Repatriation Commission (2001) 34 AAR 270

Chand v Minister for Immigration & Ethnic Affairs (unreported, Federal Court, Full Court, 7 November 1997)
Collector of Customs v PozzolanicEnterprises Pty Ltd (1993) 43 FCR 280
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VOAO [2005] FCAFC 50
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30

Repatriation Commission v Deledio (1998) 83 FCR 82
SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 137
SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 771
WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
Zuway v Minister for Immigration & Ethnic Affairs (1998) 160 ALR 391

Applicant: SZDTZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1091 of 2004

Judgment of: Smith FM

Hearing date: 1 September 2005

Date of Last Submission: 16 September 2005

Delivered at: Sydney

Delivered on: 6 October 2005

REPRESENTATION

Counsel for the Applicant: Mr R Turner

Counsel for the First Respondent: Mr G Kennett

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent dated 5 December 2002 and handed down on 14 January 2003 in matter N01/38388. 

2. Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 29 March 2001. 

3. Order the first respondent to pay the applicant’s costs in the sum of $4,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1091 of 2004

SZDTZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks relief by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 December 2002 and handed down on 14 January 2003.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

2. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.

3. The applicant arrived in Australia on a 2 month visitor’s visa in November 2000.  He is a national of Lebanon, a Maronite Christian, and comes from a town in North Lebanon.  He indicated in an application for a protection visa lodged on 20 February 2001 that he had a sister living in Australia and that his parents and five other siblings remained in Lebanon.  A short typed insertion in his application said: 

   It was necessary for me to escape from my own country, Lebanon due to the attempts on my life by opposing parties to my political and religious beliefs and actions. 

   I was able to leave with the aid of my family and friends in authority who are sending documentary evidence to verify the fact that if I return my very life will be in jeopardy. 

   It is therefore vital for my safety that I be granted a Bridging Visa until such times as the documents to prove my case arrive.  This could be a matter of some two to three months approximately due to the complex matter of communication from Australia to Lebanon, and the persons that have to supply the information. 

   As soon as the documents arrive I shall submit all of them to the Department and trust my application will be looked upon favourably. 

4. However, a delegate did not allow him this time, but refused the application on 29 March 2001.  She said: “I am satisfied that the applicant has not made his case and therefore has not demonstrated that he holds a well‑founded fear for not wanting to return to Lebanon”. 

5. The applicant lodged an application for review by the Tribunal on 2 May 2001.  He said that “confirmation on the safety factor influencing my return to Lebanon … has now arrived”, and attached a number of documents.  The first was a statement on letterhead of the “Croix Rouge Libanaise, Centre de (applicant’s town)”.  It stated: 

   This will serve to verify the fact that (the applicant) formerly living in the town of (applicant’s town) Lebanon, now currently living with relatives in (city) Australia was brought to our Red Cross quarters in (applicant’s town) by private vehicle on or about the 6^th August 2000 where upon examination he was found to have been wounded by a gun or rifle shot to the head.  As we are not in a medical situation to treat such a wound completely we carried out temporary dressing and he was then transported by ambulance to a private hospital close by for further treatment. 

   Following reports showed he had received a bullet wound to the head and the missile had fragmented.  Consultation decided that it would be more beneficial at this stage to secure the wound and in time the foreign bodies would make their way to the surface for removal. 

   It must be considered that to do any other would have entailed a lengthy journey to Beirut for surgery this could have proved dangerous as it is necessary to pass through several check points controlled by pro Syrian militia whose question could have proved detrimental to the safety of (the applicant). 

   It is generally known in (applicant’s town) that (the applicant) is an active member of a group of people (Lebanese Christians) who are opposed to the influx of Syrian workers to (applicant’s town) which has grown in such proportion as to now threaten the livelihood of the preference shown to Syrian workers protected by army and security forces who are pro Syrian. 

   (The applicant) came to the notice of the pro Syrian security because of his outspoken and visual activities on behalf of the local Lebanese workers resulting in threats by the pro army security including physical assaults the worst of which resulted in his being shot in an obvious attempt to silence him. 

   As soon as we able (the applicant) was persuaded by family and friends to leave Lebanon without revealing his problems.  This was necessary as he would have been in danger of further attempts of life threatening proportion. 

   We suggest it would most dangerous for him to return to Lebanon and he should stay with his relatives in the safety of Australia. 

6. A second document was a report by an Australian radiologist of a CT brain scan performed on 19 April 2001 which showed “the presence of a retained foreign body in the scalp with no penetration through the calvarium”.  The radiologist gave the opinion: “there is still evidence of a bullet lodged in the soft tissues of the scalp.  Two areas of intracranial increased density may be related to head injury”.  

7. The applicant subsequently employed a solicitor, who accompanied the applicant to a hearing conducted by the Tribunal on 4 December 2002.  He sent to the Tribunal a translated statement by the mayor of the applicant’s village, which said that the applicant: 

   Was pursued by members of the Syrian intelligence situated at (the village) because of his activities against the Syrians at that time.  He was arrested by those forces, bashed, tortured and injured.  He was urgently taken to hospital by the Lebanese Red Cross.  Because of pressure he was under, he left his country due to his political affiliation and activities. 

8. A transcript of the hearing is not in evidence before me.  The Tribunal recounted the applicant’s evidence in two paragraphs of its statement of reasons: 

   At the hearing the applicant presented a level of detail, which had not been raised before.  His oral evidence claims that he ran a type of seasonal employment agency in (applicant’s town) for ethnic Lebanese in the fruit industry.  He stated that Lebanon’s employment opportunities are being eroded by a massive influx of cheap Syrian labour.  He sees his role as maintaining the employment interests of Lebanese‑born Lebanese and to exclude foreign labour. 

   At the hearing he further claimed that because of his stand against foreign Syrian labour, Syrian authorities have threatened him.  In one instance in (applicant’s town) in July 2000 he was pulled over by a car with 3 people in it.  He believed the 3 plain clothed people were Syrian and they threatened that he should not continue with his business.  On a second occasion in late July 2000, again in (applicant’s town), the same people pulled him over again and took him to a house where they stated that he had not closed down his business as they warned him to do.  A Lebanese army lieutenant was also there.  Someone hit him on the neck and warned him again.  He then stated it was on 6 August 2000 that the attempt was made on his life as indicated in the sheet of paper.  He said from that time on he had to move around a lot to avoid detection and could not stay in one place until he left for Australia. 

9. The Tribunal then referred to “Independent Country Information (ICI)”, which said: 

   Whilst there is no specific evidence of Syrian workers coming into (the applicant’s town) there is evidence indicating that Syrian workers are present throughout Lebanon.  Syrian migrant workers are a serious issue in Lebanon with over 1.4 million (mostly illegal) Syrian workers estimated to be in the country.  They provide a substantial source of cheap labour and are not taxed.  As such they are an obvious source of resentment and disenchantment from unemployed Lebanese citizens.  Vocal and sometimes violent opposition to Syrian workers is growing within Lebanon. 

10. The Tribunal referred to other reports of “clashes” between Syrian Forces and Lebanese workers, and a 2002 report that “the Lebanese authorities, sometimes with the assistance of Syrian troops, actively seek and arrest those suspected of any such attacks”.  It confirmed that the Red Cross had a first aid centre at the applicant’s town, but said: 

    No ICI could be found in the sources consulted referring to any exchange involving Lebanese Authority Forces, Syrian Forces, the Lebanese Forces or act of physical violence reported in or about (the applicant’s town) on 6 August 2000. 

11. The Tribunal’s statement of reasons covering its assessment of the applicant’s claims has several inadequacies.  Importantly, it does not make clear findings with reasons as to the extent to which it accepted or rejected particular elements in the applicant’s narrative and supporting documents.  The first half of its discussion under the heading “Findings and Reasons”, does not contain either of these things, but is a further summary of what was said at the hearing.  The Tribunal said: 

    The Tribunal indicated to the applicant that it was concerned about a number of inconsistencies in the application and documentary evidence submitted by him.  Assessed separately each might not be significant but viewed as a whole the issue of credibility becomes relevant.  As a result, the Tribunal sought clarification on these areas of concern and others which conflicted with ICI and asked for the applicant’s responses:  … 

12. There is then a summary in “dot” form of ten matters which the Tribunal said it raised with the applicant and of his responses.  Many of the points raised by the Tribunal appear obscure or inconclusive or dubious.  For this reason, it is difficult to discover from its summary of these exchanges what were the Tribunal’s ultimate conclusions on the particular matters of “concern”.  Thus: 

    a)The Tribunal suggested to the applicant that “there is no mention in his oral or documentary evidence” of “problems” arising from his “political and religious beliefs” notwithstanding this phrase being used in the original visa application.  However, it is difficult to infer that the Tribunal ultimately gave weight to this suggested “concern”, since the applicant’s claims, when read in the light of the general country information found by the Tribunal, clearly raised for consideration whether he had received undoubted injuries by reason of taking a political position which supported Maronite Christian Lebanese workers against Syrian‑supported workers. 

    b)The Tribunal made a valid point that the applicant had not provided detailed claims with his visa application, and that he later did provide details in statements and evidence to the Tribunal.  However, it is difficult to understand how the Tribunal could ultimately have characterised this as revealing “inconsistencies”, which was the suggestion put to the applicant. 

    c)The Tribunal said that it put to the applicant: “that ICI does not indicate that any group or class of people is targeted either by the Syrian forces or Lebanese authorities …” and “that ICI indicated that there were no acts of physical violence in or about (the applicant’s town) on 6 August 2000”.  However, the second proposition misstated the Tribunal’s researches, and the applicant made responses to both propositions which were not self‑evidently unacceptable.  The Tribunal did not say that it did not accept his explanations. 

    d)The Tribunal said that it discussed the Red Cross statement with the applicant, and told him that it “had grave doubts about its authenticity”.  However, the points raised by the Tribunal were inconclusive, and the applicant maintained its authenticity.  Nowhere subsequently did the Tribunal actually make a finding about this key document, nor indicate what weight it was given. 

    e)When the Tribunal raised concerns about the applicant’s three month delay in applying for protection after arriving in Australia, and about his ability to depart Lebanon through Beirut airport on normal travel documents, the applicant’s responses deserved consideration, and these matters were not self‑evidently inconsistent with his refugee claims. 

13. The application in this Court sought to draw from some of the above points to identify jurisdictional error affecting the Tribunal’s decision.  The arguments were problematic since they ventured into criticisms merely of fact‑finding.  Moreover, as I have indicated, it is difficult to read this part of the Tribunal’s reasons as, in fact, drawing any conclusions from the matters it discussed with the applicant. 

14. However, it is relevant for me to refer to this part of the statement of reasons because, when the Tribunal came to state its general conclusions, it seems to have regarded the earlier discussion as a compliance with its duty under s.430(1)(c) of the Migration Act to “set out the findings on any material questions of fact”.  Unfortunately, the unsatisfactory effect of obliquely making findings in this manner, is that this discussion tends to confirm, rather than the converse, that the Tribunal then made jurisdictional errors by failing to appreciate the legal questions it was required to pose for itself when applying the Convention definition in the light of the history claimed by the applicant. 

15. The Tribunal’s expressed findings were presented in seven paragraphs containing terse and general conclusions: 

    1.The Tribunal noted the brain scans but as far as the claims of persecution were concerned could not find these of help one way or another.  As a result these were given no weight. 

    2.Where ICI conflicts with that provided by the applicant the Tribunal prefers that of ICI.  Where the Tribunal could not locate ICI on particular matters of interest to the present application the Tribunal has inferred that it or they did not happen. 

    3.The Tribunal notes the conflict in detail and substance between the application and the applicant’s oral evidence and his affirmation as to the application’s truthfulness and correctness at the commencement of the hearing. 

    4.As to the delay in submitting his application the Tribunal notes that the applicant made the application almost a month after his original visa expired.  Seeking protection in another country because of well‑founded fear of persecution in one’s home country is not a measured weighing up process but one involving acting expeditiously to ensure one is not returned to the place of persecution.  The Tribunal notes that between 27 January and 20 February 2001 the applicant was at risk of this very thing happening.  The Tribunal does not accept that the reason given by the applicant is a satisfactory explanation as to why he delayed in applying for a protection visa.  

    5.The Tribunal is not convinced that the basis for the applicant’s claim is for a convention‑based reason but one founded on resentment of foreign workers taking away work opportunities from Lebanese‑born workers.  If the version of events given by the applicant was true the violence he allegedly endured would be a criminal‑based offence and not a matter relevant to the Tribunal’s present consideration.  If the Tribunal is wrong it finds as a result of the number of inconsistencies in the evidence provided by the applicant, the unsatisfactory, incomplete and unconvincing answers to the inconsistencies are not acceptable explanations to persuade the Tribunal that what is claimed in fact happened.  These inconsistencies together with the incompleteness and overall lack of detail in the responses provided at both the hearing and the applicant’s documentary evidence has led the Tribunal to the conclusion that, on the balance of probabilities, the claims made by the applicant are not genuine.  

    6.The Tribunal finds on the totality of the evidence before it that the applicant has no genuine subjective fear of persecution.  This finding is based on the credibility issues raised above, the conflict between ICI and the applicant’s conflicting versions of events between the application and the oral evidence and the delay in applying for a protection visa.  It follows, therefore, that there is no basis for the applicant’s claims that he has a well‑founded fear of persecution if he returns to Lebanon now or in the foreseeable future. 

    CONCLUSION

    7.Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore, the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. (paragraph numbering added)

1. The principal argument presented by the applicant’s counsel in support of the application to the Court was that at several points in the above discussion the Tribunal revealed that it did not apply established principles governing its fact‑finding on whether, in terms of the Convention definition whose satisfaction is required to be addressed under s.36(2) of the Migration Act, the applicant was unwilling to return to Lebanon “owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.  In particular, it addressed uncertainties about the applicant’s claims of past persecution by making findings of fact which applied balance of probabilities tests, and failed to appreciate that the applicant might satisfy the definition even if it thought that the possibility of the past events claimed by the applicant having occurred was less than probable.  In short, it failed to apply the “real chance” test in relation to the risk of future persecution.  For reasons which I shall explain below, I consider that these submissions should be accepted. 

2. The applicant’s counsel also argued that the Tribunal’s conclusion in paragraph 1, that the medical evidence that the applicant had been shot in the head should be “given no weight”, gave rise to jurisdictional error by reason of a failure to consider relevant material, within authorities such as WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437 at [51] and [54], WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [52‑54], and Minister for Immigration & Multicultural & Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] and [13]. I was attracted by his arguments, but consider that the Tribunal’s reasoning in paragraph 1 is better examined in the light of the principles concerning the “real chance” test set out below.

3. Similarly, I have preferred not to base my judgment on arguments made for the applicant which attacked as illogical or unsupported some of the key conclusions of the Tribunal, invoking Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]. It might be possible to characterise in these terms some of the statements of the Tribunal: for example its bald statement in paragraph 2 that in relation to all “matters of interest” the absence of ICI was treated as probative that the matter “did not happen”; and its unexplained assertion in paragraph 3 that there was “conflict in detail and substance” between the applicant’s visa application and his oral evidence.  However, as I shall explain, I consider that these conclusions are better examined, not from the perspective of their intrinsic merits as findings of fact, but from the perspective of whether they revealed a misunderstanding of the legal questions which the Tribunal should have asked itself in relation to this evidence (c.f. Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [9], [36‑37], [81], [128] and [137]).

4. I therefore turn to consider the principles to be followed by a Tribunal when making findings of fact concerning an applicant’s claims of a past history of persecution.  The relevant authorities and their effect has been identified in a recent Full Court judgment in Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 (“Applicants A233”): 

   11         The ground of appeal argued both at first instance and on this appeal is that there was jurisdictional error by the Tribunal in failing to take into account, in reaching its ultimate conclusion, the possibility that the evidence which it did not accept might nevertheless be correct, and that it therefore failed to exercise its jurisdiction as required by the Act.  That contention did not find favour before the learned judge at first instance.  It has been reagitated on this appeal. 

   12         The contention is based upon the expression of the Tribunal that it was not satisfied, or did not accept, the claims made by the claimant for the reasons identified.  Reliance is placed upon the principles established by the High Court in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 575 – 576, and in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 (Abebe) at 544 – 545, [82] – [84] per Gleeson CJ and McHugh J.  Those principles were recognised and applied by the Full Court of this Court in Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCA 220; [1999] FCR 719 (Rajalingham), especially per Sackville J (with whom North J agreed) at 239 – 241 [60] – [67].  As there is no real issue about those principles, it is not necessary to refer to them in detail.  As Sackville J pointed out at 239, [60], the ultimate question for the Tribunal is whether it is satisfied that a visa applicant has a well‑founded fear of future persecution, that is has a real substantial basis for the fear that something will occur or will occur for a particular reason.  In forming that view, the Tribunal may not foreclose reasonable speculation about the chances of the hypothetical future event occurring.  In Guo at 576, in the majority judgment (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) their Honours said:

   ‘It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.  If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well‑founded fear of future persecution.’ 

   13         In Abebe at 544, [82] Gleeson CJ and McHugh J pointed out that a logical starting point in a matter such as the present, to determine whether the claimant has a well‑founded fear of persecution for his political opinions, is to decide whether he had been detained as he claimed. There is no criticism of the Tribunal for starting at that point. Their Honours at 544 – 545, [83] pointed out, however, as follows:

   ‘The prosecutor carried no onus of proof in relation to these matters, and the fact that she might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail.  As Guo makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non‑occurrence is a relevant matter in determining whether an applicant has a well‑founded fear of persecution.  The Tribunal “must take into account the chance that the applicant was so [persecuted] when determining whether there is a well‑founded fear of future persecution”.  However, given the nature of the prosecutor’s claim, the Tribunal was entitled – indeed bound – to start its inquiry by considering her claim that she had been arrested by government officials for political reasons.’ 

   14Sackville J in Rajalingham expressed the matter in the following terms at 241, [67]: 

   ‘In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons.  If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.  Reasonable speculation as to whether the applicant had a well‑founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued.  A “fair reading” of the reasons incorporates that principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”:  Wu Shan Liang at 271‑272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.’

5. In Rajalingam (supra) Kenny J cites an additional passage from Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and explains the principle:

   136      Whether or not the RRT can, by reference to an applicant’s claimed experience, infer that a fear of persecution, on a Convention ground, is well founded depends partly on its assessment of the degree of probability that claimed past events actually occurred or occurred for a Convention reason.  As the joint judgment in Guo notes (at 576):

   [extracting the passage which is set out in Applicants A233 above] 

   Further, as Brennan CJ, Toohey, McHugh and Gummow JJ said in Wu Shan Liang at 281:  

   “As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future:  the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event.”  

   See also Abebe at [83] and [85] per Gleeson CJ and McHugh J. Once the claimed past events have been evaluated, in many cases, “the probability that an[other] event will occur may border on certainty. In other cases, the probability that an[other] event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur”: see Guo at 574.

   137      In deciding whether or not it is satisfied that an applicant has a well‑founded fear of persecution for a Convention reason, the RRT may well, it seems to me, consider a range of matters, depending on the circumstances of the particular case.  After consideration of the material before it, the RRT may be of the view that a claimed event relied on by the applicant did not occur (or not for the reason alleged), although it is “only slightly more probable than not” that it did not occur as alleged.  In that case, the Tribunal must take account of that uncertainty in considering whether it is satisfied, having regard to all the material before it, that the applicant has a well‑founded fear of persecution.  On the other hand, if the Tribunal is of the view that a claimed event did not occur and that it is unlikely to be wrong in that view, then the Tribunal must exclude that event from its consideration of whether it has the relevant satisfaction.  Nor can the Tribunal, in the latter circumstance, be required to take into account any remaining uncertainty, albeit slight, that it might have about the happening of the claimed event, because it would have none that mattered:  see Guo at 576; Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Full Court, 7 November 1997); Zuway v Minister for Immigration and Ethnic Affairs (1998) 160 ALR 391.

6. It is clear that the present Tribunal arrived at its conclusion that “there is no basis for the applicant’s claims that he has a well‑founded fear of persecution if he returns to Lebanon now or in the foreseeable future” upon its findings as to the history claimed by the applicant.  Further, no express acknowledgement is made by the Tribunal that when it reached its opinion about the applicant’s future in Lebanon it appreciated that it might be enough for the past history to be found to have occurred as a possibility less than probable. 

7. The omission of express reference to the relevant principles, and the omission of any findings framed in terms which recognise them, can allow an inference that the Tribunal misdirected itself as to relevant principles (c.f. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69] and [75]). However, I consider that I should be slow to draw this inference in the present situation since, as is suggested in the above extracts from authorities, a broad latitude must be allowed to a Tribunal as to how it reaches and expresses its findings of fact as to a claimed history. It must also be accepted that it is unnecessary to expect any weighing of possibilities if it is clear that the Tribunal “had no real doubt” or was “of the view that a claimed event did not occur and that it is unlikely to be wrong in that view” (c.f. the judgments in Rajalingam cited above). 

8. I therefore would not have upheld this ground of review if I were not persuaded from the overall reasoning process revealed by the Tribunal, and by its treatment of key evidentiary issues, that it mistakenly thought that it was enough for it to resolve doubts about the claimed history by making findings on the balance of probabilities.  The following aspects of the reasoning point to this conclusion: 

   a)I have referred above to the applicant’s criticism of the Tribunal’s opening statement that the radiologist’s evidence was “given no weight” because it “could not find these of help one way or another”.  To give this statement a rational meaning, I consider that the Tribunal should be understood to have excluded this evidence from its assessment by reasoning that the fact that the applicant had a bullet in his head was inconclusive of the manner in which he was shot.  This point may have validity and allow the denial of relevant evidentiary weight to the evidence, if the Tribunal were reaching a conclusion about the claimed history on the balance of probabilities.  However, in my opinion, it would not have been open to the Tribunal to exclude the brain scans as evidence supporting a possibility (even a strong possibility) that the applicant’s account of his injuries was true.  Nor, more importantly, would it be open to the Tribunal to have excluded that evidence as deserving “no weight” at the start of an assessment of the “real chance” of the applicant risking similar injury for a Convention reason in the future.  I therefore do not consider that its statement should be read as intending to suggest either of these conclusions.  Rather, I consider that the language used by the Tribunal when excluding the corroborative value of the radiological evidence shows that the Tribunal overlooked the principles governing its assessment of the “real chance” of future persecution, and embarked at the start of its reasoning upon an evidentiary assessment applying a balance of probabilities test to the relevant evidence. 

   b)Similarly, a benign reading of paragraph 2 should seek to absolve the Tribunal from the fallacy of concluding generally that a claim was incapable of “happening” unless it was corroborated by “ICI” located by the Tribunal.  It may be possible to read this paragraph as reflecting upon each particular “matter of interest to the present application” and making a finding against the applicant in relation to each matter upon undisclosed reasons for drawing an inference from the absence of ICI “on” it.  On this basis, the paragraph might be read as specifically, and on rational grounds, drawing an adverse inference against the happening of the applicant’s claimed shooting by reason of the absence of “ICI … in the sources consulted” on a relevant incident.  However, the language in which this conclusion is framed does not suggest that the Tribunal has drawn that inference as a matter of high probability, nor as excluding the possibility that the absence of ICI was less than conclusive.  I consider that, to read the Tribunal’s stated approach to ICI as having a rational basis, it is necessary to accept that the Tribunal must have allowed for such possibilities but must have thought that they were irrelevant.  If so, it may have avoided the trap of irrationality, but fallen into the pitfall of misapprehending the relevance of less than probable possibilities when drawing findings from the claimant’s history. 

   c)Paragraph 3’s “noting” of “the conflict in detail and substance between the application and the applicant’s oral evidence” cannot, in my opinion, be read as indicating a high level of confidence in this factor as discrediting the applicant’s history.  This is because the context provided by the material before the Tribunal tends to suggest that any “conflict” (if it existed at all) was susceptible of innocent explanations.  In the absence of a reasoned explanation for concluding that there were defects in the applicant’s presentation of his evidence which left the Tribunal in no doubt about the falsity of his history, or of some obvious defect pointing to that conclusion – which I cannot find – I consider that the neutral language of “notes” suggests no more than this was a consideration which the Tribunal balanced. 

   d)The Tribunal’s conclusion in paragraph 4 that it “does not accept that the reason given by the applicant is a satisfactory explanation as to why he delayed in applying for the protection visa”, in circumstances where the delay was less than 3 months and where the applicant’s explanation was not clearly without substance, should not be read as indicating a weighing process which excluded doubts as to the possible truth of the applicant’s history. 

   e)Paragraph 5’s opening conclusion was “the Tribunal is not convinced that the basis for the applicant’s claim is for a convention‑based reason”.  I shall below examine its reasons for this conclusion, however, for present purposes I consider that it is significant that it poses a question which, even reading the use of “convinced” in a benign way, at least gives no attention to possibilities less than probable that his history might suggest a future risk of harm which was Convention‑related.  Its language certainly does not indicate that the issue was not a matter beyond doubt in its mind.  This is clear, since the Tribunal then proceeded to address the applicant’s claimed history on the basis that “if the Tribunal is wrong”. 

   f)In the balance of paragraph 5, when asking itself the question whether “the version of events given by the applicant” was not true, the Tribunal expressly resolved the issue by concluding “that, on the balance of probabilities, the claims made by the applicant are not genuine”.  Understood literally, this is very suggestive that the Tribunal applied a test of probability inconsistently with the authorities cited above.  Moreover, in the light of the surrounding reasoning, I am unable to accept the submission of counsel for the Minister that the Tribunal’s invocation of “the balance of probabilities” was merely “unfortunate” and should not be taken literally.  The sentence which precedes this reference refers to whether the applicant was able “to persuade the Tribunal that what is claimed in fact happened”. This is the language of weighing evidence on a civil court standard, and of being left in doubt. In the context of the Tribunal’s other reasoning which I have explained above, I find clear confirmation from the expressions used in this paragraph that the Tribunal’s findings had left it with some doubts as to the truth of the applicant’s history. In my opinion, its language shows that the Tribunal failed correctly to weigh the possibilities that the applicant had been shot in the circumstances claimed and that similar harm might befall him if he returned to Lebanon, when making the predictive finding required by s.36(2) and the Convention definition.

   g)The failure correctly to weigh these possibilities before concluding that “there is no basis for the applicant’s claims that he has a well‑founded fear of persecution if he returns to Lebanon” led, therefore, to the Tribunal constructively failing to exercise its jurisdiction according to law. 

1. Counsel for the Minister sought to support the validity of the Tribunal’s decision on two arguments, even if it had made the error which I have found above. 

2. His first argument was that the error did not taint the Tribunal’s conclusion in paragraph 5 that “if the version of events given by the applicant was true the violence he allegedly endured would be a criminal‑based offence and not a matter relevant to the Tribunal’s present consideration”.  However, as I have indicated above, the Tribunal appears to have reached this opinion by asking whether it was “convinced” that the claimed violence had a Convention character, and this is indicative of a failure to assess the real chance of Convention‑related violence in the future.  It is therefore not clear to me that the conclusion is untainted by the error which became manifest in its subsequent sentences. 

3. Moreover, I accept the submission of counsel for the applicant that the reasoning of the Tribunal at this point shows a significant misconception as to the effect of the Convention.  In my opinion, the Tribunal could not exclude a Convention relationship to the violence claimed by the applicant without excluding Convention reasons for both the violence and for the absence of effective protection from Lebanese authorities.  It was not enough for the Tribunal to characterise the motives of the alleged perpetrators of the violence as being “criminal” and without any Convention nexus (assuming that this was open to the Tribunal).  Once it made that finding, it was required to address the applicant’s further claim that the Lebanese authorities in the area were unable or unwilling to give the applicant effective protection by reason of their complicity in, or toleration of, Syrian‑supported violence, and whether the Lebanese authorities were in that position by reason of politics or other Convention reason (c.f. SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 771 per Hill J at [31‑32], applying Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1). The Tribunal failed to address this issue, and its decision cannot, therefore, be supported by reference to its opinion that the persecution claimed by the applicant was not Convention‑related persecution.

4. The Minister’s second argument to support the Tribunal’s decision argued that there was another independent foundation for its affirmation of the delegate’s decision.  This was in the first sentence of paragraph 6: “the Tribunal finds on the totality of the evidence before it that the applicant has no genuine subjective fear of persecution”.  However, I am not persuaded that this finding was not consequential nor dependent upon its previous reasoning.  To the contrary, I am inclined to read its reference to “persecution” in this sentence as a reference only to fear of persecution coming within the Convention.  Its conclusion about subjective fear was, therefore, consequential upon its previous finding which excluded a Convention nexus for the violence suffered by the applicant.  A similarly qualified meaning to the word “persecution” appeared in the Tribunal’s reference to “claims of persecution” in paragraph 1.  If so, the Tribunal’s conclusion at the start of its paragraph 6 was affected by the Tribunal’s previous errors. 

5. Unless the sentence is read in this fashion, the Tribunal might appear to have strayed into manifestly unreasonable decision‑making, due to the absence of any consideration of why somebody in the situation of the applicant as accepted by the Tribunal, who arrived from Lebanon with undoubted evidence of having been shot in the head, would not have a fear of a repetition of violence on return. 

6. A further reason for not being satisfied that this finding can separately support the Tribunal’s decision in the face of its other errors, is that I am not persuaded that it was not also made on an inadequate “balance of probabilities” assessment of the applicant’s fears, so as to be affected by the principal error which I have identified above. 

7. Counsel for the Minister submitted, in response to this concern, that the Convention definition would never require application of a “real chance” or “less than probable” test when addressing the element of subjective fear of persecution for a Convention reason.  He cited SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 137 at [12], but I do not understand this passage and the cases it cites to be addressing that issue.

8. The alternative analysis is that the definition’s reference to “owing to well‑founded fear …” includes reference to a claimant’s subjective fears which are continuing and may exist in the future, so that the “real chance” principles to which I have referred above apply as much to this issue as to the objective “well‑foundedness” of the claimant’s fears.  Usually these issues can be addressed in a single assessment which appreciates that the assessment of the future situation of the claimant if he returns to his country of nationality requires application of the “real chance” test to his past history, as explained in the authorities referred to above.  Moreover, on one reading of the definition, the only finding exclusively as to a present state of mind of the applicant is whether he or she “is unwilling to avail … or to return”.  Generally, I consider that the courts should be slow to introduce dual standards of satisfaction to an assessment of a person’s claimed history – the complexity which results from being required to do this is well illustrated in veteran’s law (c.f. Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, Benjamin v Repatriation Commission (2001) 34 AAR 270 at 282‑283).

9. I am not persuaded by the Minister’s argument that no error affected this conclusion of the Tribunal. 

10. For the above reasons, I consider that the Tribunal failed constructively to exercise its jurisdiction to review the delegate’s decision according to law, and that the applicant is entitled to relief by way of writs of certiorari and mandamus. 

11. The parties have agreed upon a costs order. 

I certify that the preceding thirty‑four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  6 October 2005