SZEXQ v Minister for Immigration
[2005] FMCA 1556
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEXQ v MINISTER FOR IMMIGRATION | [2005] FMCA 1556 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 424A, 474, 483A
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
SZAFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 173
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
Minister for Immigration & Multicultural & Indigenous Affairs v Rajalingam (1999) 93 FCR 220
Bains v Minister for Immigration & Multicultural Affairs [2001] FCA 403
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
| Applicant: | SZEXQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2212 of 2004 |
| Delivered on: | 28 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 August 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R B Wilson |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2212 of 2004
| SZEXQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 15 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
14 November 2002 and handed down on 11 December 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 10 January 2000 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZEXQ”.
The applicant, who claims to be a national of Pakistan, arrived in Australia on 4 December 1999. On 16 December 1999 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-35) (“CB”). On 10 January 2000 the delegate refused to grant a protection visa (CB pp.38-48) and on
25 January 2000 the applicant lodged an application with the Tribunal for a review of the delegate’s decision (CB pp.50-51). On
14 November 2002 the Tribunal made its decision affirming the decision of the delegate. The Tribunal’s decision was handed down and sent to the applicant on 11 December 2002 (CB pp.72-87).
In a statement lodged with his protection visa application, the applicant claimed to have been an active member of the Pakistan People’s Party (PPP), which brought him into conflict with that Party’s main opposition, the Pakistan Muslim League (PML). While the PML was in power, various threats were made against him including false criminal charges. The applicant also claimed to have had an “affiliation” with a group known as the Sipah-i-Sahaba Pakistan (SSP), which lead to threats against his life being made by the Tehrik-i-Nifaz-i-Fiqah-i-Jaffaria (TNFJ), which believed the applicant to be an active SSP member (CB pp.31-33).
At the Tribunal hearing, the applicant advanced similar claims. It appeared from the summary of the hearing in the Tribunal’s reasons that, in response to questioning by the Tribunal, the applicant’s “affiliation” with the SSP became limited to having college friends in the organisation and agreeing with its economic policies. He maintained that people had thought he was with the SSP but said that this had been a misunderstanding (CB pp.78-79).
The Tribunal’s findings and reasons
The Tribunal did not accept that the applicant had been perceived as belonging to the SSP. It therefore did not accept that the applicant had to flee Pakistan because of a fear of being harmed for that reason or that there was a real chance that he would be harmed for that reason if he returned to Pakistan (CB p.86).
The Tribunal did accept the applicant’s account of his involvement in the PPP, and that he would continue the involvement if he were to return to Pakistan, but it did not accept that he had been persecuted on this account. It also noted that the PML had been ousted in a coup in October 1999 and that all of the existing parties continued to operate legally under the current regime. It did not accept that there was a real chance of the applicant being persecuted on account of his involvement in the PPP if he were to return to Pakistan (CB p.86).
Accordingly, the Tribunal did not accept that the applicant faced a real chance of Convention-related persecution in Pakistan (CB p.86).
Application for review of the Tribunal’s decision
On 15 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 16 December 2004 the applicant filed an amended application which contained the following grounds:
1.That the Tribunal’s decision did not involve a proper determination of the applicant’s claim, namely that he is at risk of persecution by reason of his participation in the political activities of the Pakistan People’s Party (PPP) and secondly by reason of an attributed political affiliation that he is a member of the Sipah-i-Sahaba Pakistan (SSP).
2.That the Tribunal failed to determine in fact whether the applicant had or had not been subjected to harmful treatment by Shia Muslims or members of the Tehrik-i-Fiqah-i-Jaffaria (TNFJ) prior to his departure from Pakistan.
3.That the Tribunal’s determination that it did not accept that Shia Muslims and members of the TNFJ had attributed a political opinion to the applicant that he was a member or supporter of the SSP was an unreasonable determination, or alternatively was not a determination that was open to the Tribunal on the evidence before it.
4.That the Tribunal erred in law in that the applicant’s explanation as to why Shia Muslims and the TNFJ had attributed an adverse political opinion or affiliation to him was both credible and plausible and the Tribunal refused to accept this explanation in the absence of any evidence as to why it was not credible and plausible.
5.That the Tribunal, having found that independent country information established the violent activities engaged in by the SPP and the TFNJ ought to have considered and determined whether, if this be an incorrect determination, the applicant faced a real risk of persecution should he return to Pakistan, which it did not do.
6.That the Tribunal acted in breach of natural justice in that it failed to make available to the applicant the several document before it upon which it based its decision and thereby precluded the applicant from having the opportunity of making proper comment and adducing relevant evidence. These documents are those referred to at page 5 of its reasons (Court Book page 76) and those reproduced at pages 88 to 183 of the Court Book. (Errors included)
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
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 the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
Mr G Kennett of Counsel, appearing for the respondent, indicated he had instructions to seek to have the Tribunal joined as the second respondent and that he had instructions from his Solicitors to enter an appearance on behalf of the Tribunal.
Mr R Wilson of Counsel, appearing for the applicant, indicated that he relied upon the applicant’s amended application filed on 16 December 2004. He also indicated he had filed an Outline of Submissions on
2 August 2005 and that he sought to tender the Court Book prepared by the respondents as part of the evidence in the proceedings together with the applicant’s affidavit of 2 August 2005. Mr Wilson also sought to tender a sound recording of the Tribunal’s hearing and he indicated he would rely on his written submissions filed in these proceedings.
Mr G Kennett of Counsel, appearing on behalf of the respondent, filed written submissions prior to the hearing which he indicated to the Court he would rely upon.
Reasons
Grounds 1 and 2
Both Counsel addressed the Court on Grounds 1 and 2, being the single issue of the method in which the Tribunal dealt with the applicant’s claims. In respect of these two grounds, both Counsel addressed the Court in great detail on each of the applicant’s claims and the reasoning adopted by the Tribunal in considering each of the claims.
Mr Wilson made the following written submissions in respect of Grounds 1 and 2:
The factual basis for the applicant’s fears is set out in the annexure to his application at CB pages 31 to 33. The first relevant fact is that he had received threats against his life from his persecutors; the second is that in September 1999 his two cousins were killed following which the persecutors “became after me”. The assertion by the applicant that these factual events came about by reason of the erroneous attribution of a political opinion was a statement of belief. In fact the applicant had formed this belief.
The only factual finding made by the Tribunal was that it did not accept that the applicant “would have been perceived as belonging to the SSP merely because some of his college friends were members of that party” (CB page 86). The Tribunal gave as its reasons the facts that the applicant had a prominent role in the PPP and that his family had a long standing affiliation with that party (CB page 86).
The Tribunal had not expressed in its reasons whether it found that the applicant had been impressed with the economic policy of the SSP and spoke out about it; whether it found that the applicant’s life had been threatened; nor whether it found that the applicant’s two cousins had been killed, and, if so, for what reason. The correct inference is that the Tribunal made no findings as to these three matters.
A positive finding by the Tribunal on any one of these matters could have led to the further finding that an attribution of political connection had in fact been made or could have led to the more general conclusion that the application feared harm by reason of political opinion and that there was a real risk that this could occur should he return to his homeland.
Consequently, the Tribunal’s findings did not dispose of all the issues that required consideration and thereby the Tribunal erred in determining the application before it (SZAFW v MIMIA [2004] FCAFC 173 06.07.04).
Mr Kennett filed the following response to the applicant’s claims in his written submissions:
The Tribunal dealt squarely with each of the bases upon which the applicant claimed to fear persecution. It clearly rejected the core elements of each basis.
As to the claim of perceived connection with the SSP, the Tribunal was unable to accept that it was plausible that anyone would believe the applicant to be a SSP activist. The only basis finally offered for that perception was that some of the applicant’s friends were in the organisation. On the other hand, the Tribunal noted, the applicant was a well known PPP activist and came from a family with long standing PPP connections.
This conclusion was at least an implicit rejection of any claim to have suffered harm at the hands of the TNFJ because of perceived involvement in the SSP. In any event, the material before the Court does not indicate that any such claim was advanced. The applicant’s initial claim was that he was threatened, and “virtually became a victim of the TNFJ” (CB p.32). The Tribunal expressly rejected this assertion when it refused to accept that he had left Pakistan in fear of being killed by Shia Muslims or the TNFJ.
As to the other factual matters asserted to have been relevant in the applicant’s written submissions:
(a)whether the applicant actually was impressed by the economic policies of the SSP was irrelevant if (as the applicant said) he was not actually involved in that group and (as the Tribunal found) he was not perceived as involved in it;
(b)the claim to have spoken publicly in support of the SSP’s policies was clearly disavowed at the Tribunal hearing, where the applicant said that “he had not actually done anything for the SSP” and “had not in fact had any involvement in the group” (CB p.79);
(c)the claim to have been threatened by the TNFJ was intimately connected with the claim to have been identified as a SSP supporter – it was either implicitly rejected, or rendered irrelevant, by the rejection of the latter claim; and
(d)the applicant’s two cousins were said to have been killed because they were “from the SSP” – an incident which was irrelevant to the applicant’s circumstances if (as the Tribunal found) he was not himself connected, or thought to be connected, with the SSP.
Each of these assertions was, at most, “evidence which, if accepted, might have led [the Tribunal] to make a different finding of fact”: e.g., if the Tribunal had been convinced that the Applicant was threatened by the TNFJ, that might have lent some plausibility to his claim that the TNFJ regarded him as a SSP activist. None of them was, in itself, “a contention which, if accepted, might establish that the Applicant had a well founded fear of persecution for a Convention reason”: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, 641 [46]; and compare SZAFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 173, where the Tribunal had not dealt with a distinct basis for fearing Convention-based persecution, advanced by the applicant, had not been addressed. It follows that the failure to address them expressly does not amount to error by the Tribunal.
Counsel for the applicant pointed initially to a number of factual propositions made by the applicant, being things he said had happened to him and the claim of a belief based on those facts. The applicant’s belief was that he had been taken by various people to be a member of the SSP and subjected to threats as a result. There are two problems with this analysis. Firstly, the belief was expressed by the applicant as fact. The assertion that he made was that he was in fear for his life because he had been taken by various people to be a member of the SSP. The second problem with the analysis is that to make out a refugee claim, the applicant had to assert that matter as a fact and that the Tribunal needed to accept it as fact to give rise to a question about the existence of a well-founded far. Even if it were accepted that the applicant had been subjected to threats and intimidation and if it were accepted that the applicant’s relatives had been killed and that had caused him fear, it would still need to be established that there was a Convention reason for that fear. The Convention reason suggested was political opinion in the form of attribution to him of an opinion by others. For the applicant to succeed he had to have the Tribunal accept both the existence of this belief and the factual soundness of it.
Counsel for the applicant went through the reasons of the Tribunal with some considerable care. Several issues arose from that analysis. Firstly, was there an impression that the Tribunal may have thought the applicant was changing his story? Two points arose from that question. The submissions made on behalf of the applicant were entirely a critique of the fact finding exercise by the Tribunal and that matter is within the province of the Tribunal. It is for the Tribunal to determine whether there has been a change, subtle or otherwise, in the story that was being put by the applicant. Whether that change was a refinement or an explanation of what the applicant said, the Tribunal noted the inconsistency and that is a decision for the Tribunal. The Tribunal’s reasons did not rely on a change of position or something that distracts from the credibility of the story the applicant told. The Tribunal did not accept as a factual matter that the applicant would have been perceived as belonging to the SSP merely because some of his college friends were members. The Tribunal rejected as a proposition of fact the proposition that the applicant was perceived to belong to the party. The Tribunal’s rejection of the factual proposition is significant in two respects: the Tribunal had to accept as a fact that there had been an attribution in order for the applicant to succeed; the rejection of the attribution was fatal to the first limb of the applicant’s claim. The other limb was the suggestion that the applicant’s PPP involvement had led him to have threats made against him.
More globally, the Tribunal actually rejected the entire story and regarded the implausible nature of the critical link in the story. The Tribunal’s statements that it did not accept the applicant had to flee Pakistan because he feared being killed by Shia Muslims indicated that the Tribunal did not accept the proposition that the applicant was in actual fear of harm when he left Pakistan. The absence of a subjective fear of persecution is another fatal gap in the applicant’s claim for refugee status.
In essence, the applicant’s claim was that the Tribunal did not determine his whole claim and only looked at one specific part and the Tribunal erred because it formed the belief that if it decided the attribution point it could dispose of the applicant’s claim or the entire ambit of the grounds that were being put before the Tribunal. Counsel for the applicant claimed the error goes to jurisdiction and in support of that position took the Court to the Full Court of the Federal Court decision in SZAFW v Minister for Immigration & Multicultural & Indigenous Affairs (“SZAFW”). In that decision it was found that part of the applicant’s claim was not properly considered by the Tribunal and accordingly the decision was set aside. Evidence that raised assertions that were really part of the case that the applicant was putting were not considered by the Tribunal.
Mr Wilson argued that apart from the question of whether or not there was attribution of political opinion, the applicant raised two essential categories of evidence in that he was threatened, for whatever reason, by organisations. It was submitted that the Tribunal gave no attention at all to that assertion and did not deal with it in any way. The second issue raised by the applicant was that his two cousins had been killed and that people had therefore come after him. It was further submitted that the Tribunal did not make any findings in relation to that fact and therefore the Tribunal failed to consider whether critical evidence that could have shown the applicant’s fears to be well-founded was not investigated and no findings were made in relation to that evidence.
In response to this submission, Counsel for the respondent referred the Court to the decisions of Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (“Durairajasingham”) and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (“WAEE”). In Durairajasingham the observations of McHugh J in respect of the Tribunal’s obligations to give reasons under s.430 addresses the criticism made of the Tribunal by the applicant in respect of the absence of reasons in its decision. Particularly, the context of the duty to give reasons points to the legal flaw that may or may not be inferred in the Tribunal’s decision on the presence or absence of something in the reasons. His Honour at [64] states:
“It is not necessary in order to comply with s.430 for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine any finding which it made.”
Then at [65] his Honour states:
“Whenever rejection of evidence is one of the reasons for decision, the Tribunal must set that out as one of its reasons, but that said, it is not necessary for the Tribunal to give a line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to the findings of material facts made by the Tribunal.”
Then at [67] his Honour states:
“There is reference to a finding that had been made in that case that the prosecutor’s evidence was utterly implausible, and his Honour says:
‘This is essentially a finding as to whether the prosecutor should be believed in his claim, a finding of 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 subset of reasons why it accepted or rejected individual pieces of evidence’.”
His Honour says the reason for disbelief is apparent in the use of the word “implausible”, that the belief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.
I accept the respondent’s submission that in this case the Tribunal regarded the central plank of the applicant’s case as inherently unlikely. It was entitled to take that view and it was good enough to expose in short form, its reasons for taking that view and it should not be criticised for not expanding on such reasons.
In WAEE the issues were substantially similar to those of SZAFW. However, there is a distinct and significant difference. In respect of the critical question of whether the applicant has a well founded fear of persecution for one of the Convention reasons, their Honours French, Sackville and Hely JJ stated:
“If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty to conduct a review of the decision.”
However, this is qualified in [46]:
“It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. … there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (citation omitted) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.”
Then at [47] their Honours state:
“The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn….”
Their Honours then went on to find that the Tribunal had failed to consider an issue. However, the passage above addresses the difference between failing to deal with a contention and, on the other hand, a failure to overt to or even deal with a piece of evidence such as a factual assertion which it believed would add weight to the contention.
In the present case, what the Tribunal was said to have omitted to mention is not a separate issue on which fear is alleged to have been held. But rather, some of the underlying factual claims put by the applicant to bolster or make out the overall contention that he feared persecution as a result of being linked with the SSP. If the Tribunal had failed to address that overall contention, then it very likely it would have fallen into error. But plainly it did not fail in that regard. It rejected that overall contention squarely and accordingly this ground cannot be sustained.
Grounds 3 and 4
Counsel addressed the Court on Grounds 3 and 4 as effectively being a single issue as to the method in which the Tribunal dealt with the applicant’s claim. Mr Wilson, for the applicant, submitted that the Tribunal made no adverse credibility finding in relation to the applicant’s evidence. He contended that the only finding it made was that it was not persuaded that the applicant’s belief as to the attribution of a political opinion was correct (CB p.86). It was argued that there was, in fact, no contrary evidence and the belief itself cannot be said to be inherently implausible given the Tribunal’s finding as to politically motivated violence.
Counsel for the applicant submitted that the Tribunal’s observation that the applicant sought to distance himself from the SSP at the hearing was incorrect (CB p.85) and the position of the applicant was the same at the time he made his application (CB p.31). It was submitted that the guiding principle here is that an applicant, whose claims are plausible and credible, unless there are good reasons not to do so, should be given the benefit of the doubt (following 1992 United Nations Handbook on Refugee Applications at [196]-[197] and [203]-[204] and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs at 451. The applicant claimed the Tribunal’s decision disclosed no reason for its conclusion that it did not accept the applicant’s belief as to the attribution of a political opinion to him. In the absence of any good reason, the conclusion reached by the Tribunal on this aspect was not open to it.
Alternatively, the applicant argued no reasonable person would have reached such a conclusion on the materials before the Tribunal and this submission was based on two reasons, namely:
a)Firstly, in the absence of good reason, no reasonable person could conclude that, given the existence of politically motivated violence and the history the SSP, that the attribution of political affiliation was not a possible explanation; and
b)Secondly, without making a finding as to the three factual matters set out above, no reasonable person would reach the ultimate conclusion that the applicant’s fear was not well founded, in the sense that there was no real risk of harm for the applicant should he return home.
In relation to the credibility finding contained in Grounds 3 and 4, the respondent submitted:
The Tribunal put to the applicant and, observed again in its “findings and reasons”, that it found it “difficult to accept” his claim that the TNFJ wanted to harm him because of a perception that he was a SSP activist (CB 79, 96). The Tribunal’s stated reasons for not accepting that he would have been perceived in this way emerged from the applicant’s own evidence: i.e., his strong identification with the PPP and the fairly flimsy basis offered for the alleged perception. This was obviously an “adverse credibility finding” in relation to an important aspect of the applicant’s claims.
Findings on credibility are, of course, “the function of the primary decision maker par excellence”: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 423 [67]. Further, such findings “are often based on matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive”: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4] per Gleeson CJ; see also Bains v Minister forImmigration & Multicultural Affairs [2001] FCA 403.. It is a matter for the Tribunal to decide whether it finds the claims put to it plausible; and a finding that they are not plausible need not cite evidence to the contrary.
The applicant’s reliance on the general guidance provided by the United Nations Handbook, and endorsed in Randhawa, presupposes that his claims were “plausible and credible”. Plainly, however, the Tribunal did not think that they were. It was clearly open to the Tribunal to take that view.
The Tribunal clearly rejected as a factual proposition that which was advanced as a fact by the applicant, namely that he had been associated in the minds of others with the SSP. The Tribunal rejected the assertion of fact underlying that claim. It was very clear that the Tribunal was disbelieving the central plank of the applicant’s claim because it found it was inherently unlikely. That is a finding on a matter of credibility; a finding of the kind which McHugh J described as a matter for “the primary decision maker par excellence”. It was a matter for the Tribunal to determine what it regarded as worthy of weight, what it regarded as plausible and what considerations it regarded as undermining the applicant’s story.
There is acceptance in judgment in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 that a finding that lacked any sensible basis might indicate a failure by the decision maker to grapple with the issues he or she is required to address and resolve. In the subsequent decision of NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs his Honour Allsop J collects references to cases in a long line, stressing that an administrative decision had to be based on reason and not humour. It cannot be simply made up; it has to be based on matters of substance. Those cases emphasise that it is not an invitation to review findings, and in particular credit findings, on their merits. It is not an invitation to the Court to dive into and over turn a decision on the basis of a strong disagreement with the decision maker as to what was plausible and what was not. There does not appear to be any logical flaw in the way that the Tribunal rejects these claims and Grounds 3 and 4 cannot be sustained.
Ground 5
Counsel for the applicant contended that Ground 5 brings into play the principles in Minister for Immigration & Multicultural & Indigenous Affairs v Rajalingam (“Rajalingam”). Mr Wilson made the following written submission in respect of Ground 5 as follows:
The Tribunal accepted the existence of political violence at the hands of the extremist groups identified in its decision. By merely holding that it did not accept the evidence of the applicant’s belief as to why a political opinion was attributed to him, and in the absence of any determination of the three factual matters identified above, the Tribunal did not reach a state of satisfaction where it could be said to have “no real doubt” as to the risks faced by the applicant. Accordingly it ought to have directed itself in accordance with the principles in Rajalingam (MIMIA v Rajalingam (1999) 93 FCR 220), which it did not.
The applicant contended that the principles in Rajalingham are brought into play in the following way. The Tribunal did not address the entirety of the evidence and other significant facts that were important to the applicant’s case. It was submitted that the Tribunal erred in two ways. The Tribunal, on a proper construction of its reasons, did not reach a state of satisfaction where it had no real doubts as to the risks faced by the applicant. It deliberated on the attribution of political affiliation. Its reasons did not demonstrate that it was satisfied beyond any real doubt about the truth of those findings or the correctness of those findings. Counsel for the applicant contended putatively if the proper construction is the Tribunal did not reach such a state of satisfaction, it was not a state of satisfaction that was properly open to it to give the facts that he determined the three factual matters that had been identified. It should not have reached that conclusion without dealing with these other factual matters. It was submitted, consequently, that if the Tribunal had approached its decision in the correct way, that is: “I am not satisfied there was an attribution of political affiliations but there are these other aspects” being the threats against the applicant and the death of his cousins, then there was some explanation for that. It was submitted that the way the Tribunal approached this case and the findings it made, either it did not reach a proper state of satisfaction or if it did, it was incorrect in doing that.
In response to this contention, Mr Kennett for the respondent filed the following submission:
It can be accepted that, if the applicant had been believed in his claim that the TNFJ thought him to be a SSP activist, the evidence on political violence might well have led the Tribunal to accept that he had a well founded fear of persecution on a Convention ground.
However, he was not believed, and the existence of political violence therefore got him nowhere. The finding that his claim was implausible was not attended by any “real doubt”. There was therefore no need for the Tribunal to assess his claims on the basis that they might be true.
When one looks at the reasons, it is plain that the Tribunal was not entertaining any doubt. It is just as a matter of fact emerging from the reasons. Counsel for the respondent referred the Court to the matter of Bains v Minister for Immigration & Multicultural Affairs per O’Loughlin J where his Honour points out that it is necessary for the Tribunal to remind themselves of the difficulties that an applicant faces when it comes to proving issues. At [17] his Honour noted:
“The Tribunal should exercise great care when assessing the importance, relevance and accuracy of material that is put before it.”
Nevertheless, his Honour states:
“It remains a fact that decisions on credibility are often based on matters of impression and an unfavourable view taken on an otherwise minor issue may be decisive.”
His Honour Gleeson CJ in Re Refugee Review Tribunal; Ex parte Aala states:
“If a Tribunal has reasonably come to a conclusion that it is unable to accept an applicant’s evidence and its reasoning process cannot be faulted, there is no reason for this Court to intervene even though it considers that it might have come to a contrary conclusion if it had been the original decision maker. This is a subject which has often been addressed by the Court.”
There is then a substantial extract from Randhawa. Within that quotation is a quotation from the UNHCR Handbook which states:
“The benefit of the doubt should, however, only be given when all the available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility.”
That confirms what is really inherent in the enquiry being undertaken in this case, which is that the obligation to give someone the benefit of the doubt depends on an assessment that their evidence is prima facie credible. It is an obligation of the decision maker and it is therefore dependent on the decision maker coming to the view that the evidence is credible, not on a general or objective view taken by this Court that it was credible. If the decision maker forms the view that the evidence is implausible and formally rejects it, as has happened here, then the decision maker cannot be under a duty then to provide the benefit of the doubt which does not exist. For this reason Ground 5 cannot be sustained.
Ground 6
In respect of Ground 6, Counsel for the applicant filed the following written submission:
The Tribunal’s decision discloses that it formed the view that when it disclosed to the applicant at the hearing that the SSP was a violent organisation, and the applicant was “forced to concede” that this was so, the applicant sought to distance himself from the organisation but nevertheless “persisted in his claim” (CB page 85). Consequently, the violent nature of the SSP was an important consideration in the Tribunal’s reasons and it failed to provide the applicant with the evidence upon which this was based (at CB pp 88 to 183) to the applicant. Section 424A of the Migration Act requires that this ought to have been done (SAAP v MIMIA [2005] HCA 24).
It was submitted that particular documents that the Tribunal relied upon were not provided to the applicant. The question is whether these materials do fall within s.424A of the Act? It was submitted that this was a question the Tribunal itself had to determine at some stage during the course of its proceeding. It was submitted that it was quite clear that those materials show factual information that was material to the Tribunal’s decision and was material insofar as it influenced the Tribunal in reaching a conclusion adverse to the applicant. The finding was that “the applicant was forced to concede the violence and sought to distance himself from the organisation”.
It was submitted that the material played a part in the Tribunal’s reasons, although not expressly clear in the reasons what part it played. The only question raised was whether this material comes within the exception to s.424A materials: sub-s.(3)(a). These materials do not satisfy the second part of sub-s.(3)(a). The materials are not specifically about the applicant but are about a class of person, namely SSP and TNFJ. However, the applicant is not a member of those organisations. Consequently, sub-s.(3)(a) does not apply and therefore because all elements are not satisfied, the exception will not apply. Therefore, the requirement in sub-s.(1) is a jurisdictional requirement that the Tribunal is to provide these materials.
Counsel for the respondent contended that what was alleged was that the Tribunal failed to give the applicant documents on which it drew the conclusion that the SSP was a notoriously violent organisation. That proposition was put to the applicant and he concurred with that proposition. “Conceded” is a term the Tribunal used in its summary of the hearing but there does not seem to be any dispute between the applicant and the Tribunal as to the proposition that the SSP was a violent organisation. This raised the question that, in those circumstances, was the Tribunal obliged to tell the applicant the basis for its view to that effect? The exception to the requirement of s.424A is sub-s.(3)(a) and that paragraph involves two limbs which have been the subject of several Full Court decisions. In Minister for Immigration & Multicultural & Indigenous Affairs v NAMW, the Full Court reached the view that the second part of paragraph (a) “and is just about a class of persons”, was not a separate requirement but merely served to emphasise the specificity of the kind of information that was required to be disclosed. In QAAH v Minister for Immigration & Multicultural & Indigenous Affairs, the Full Court has confirmed its approach to the exception in s.424A(3)(a). Consequently, there is only one requirement expressed in sub-s.(3)(a) and the effect of that requirement is to exclude country information from the scope of the obligation in sub-s.(1).
Counsel for the respondent submitted that the nature of the SSP, in that it was a violent organisation, was not something the Tribunal relied on in any sense adversely to the applicant. The applicant agreed with that proposition and the Tribunal, in its findings and reasons, did not suggest the fact that the SSP is a violent organisation is something that led it to disbelieving the applicant. In those circumstances, it is difficult to bring this information within sub-s.(1)(a) of s.424A because it is difficult to show it was specifically the reason or part of the reason for forming the decision under review.
Counsel for the respondent also addressed the Court in respect of natural justice under the general law as it is applicable to Ground 6. The applicant conceded that the SSP was notoriously violent. That infers that there must have been some decision in the hearing of the nature of that organisation and the Tribunal must have exposed to the applicant its understanding. Disclosure of the substance will be enough to satisfy the general rule of duty of procedural fairness. There is not a duty under those principles to show people particular documents, so long as the gist of the information is conveyed. The applicant did accept the proposition being put to him. There is no suggestion in the material that it was a matter of dispute and it is difficult to see why natural justice would require a decision maker to tell an applicant the particular basis for a conclusion with which the applicant himself or herself agrees or which he or she is prepared to accept. The underlying fact of the nature of the SSP was something that in itself played no role in the Tribunal’s reasoning. For these three reasons, there would not be an obligation on the Tribunal to disclose that material. Ground 6 cannot be sustained.
Conclusion
The grounds pleaded by or on behalf of the applicant that jurisdictional error was committed by the Tribunal cannot be sustained. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 October 2005
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