SZKUG v Minister for Immigration - [2008] FMCA 1

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUG v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Israel/Palestine – applicant not believed – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) in not alerting the applicant to its doubt about the applicant’s claim that his girlfriend lived in Gaza considered – whether the Tribunal’s finding in relation to the Israel security law overlooked evidence of its selective enforcement against Palestinian males and was based upon a presumption of proportionality rather than evidence considered.

Migration Act 1958 (Cth), ss.424A, 425

Applicant A v Minister for Immigration (1996-1997) 190 CLR 225
Applicant S v Minister for Immigration (2004) 217 CLR 387
Chen v Minister for Immigration (2000) 201 CLR 293
SZBEL v Minister for Immigration (2006) 81 ALJR 515

Applicant:

SZKUG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1895 of 2007

Judgment of:

Driver FM

Hearing date:

11 December 2007

Date of Last Submission:

13 February 2008

Delivered at:

Sydney

Delivered on:

22 February 2008

REPRESENTATION

Counsel for the Applicant:

Dr M Allars

Solicitors for the Applicant:

Gilbert + Tobin

Counsel for the Respondents:

Mr G Kennett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1895 of 2007

SZKUG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 22 May 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from paragraph 2 of the applicant’s written submissions filed on 4 December 2007 and paragraphs 3 to 6 of the first respondent’s written submissions filed on 5 December 2007.
The applicant is an Arab Israeli and is Muslim. He was born in Al Kamana in Israel on 2 December 1979. He is an Israeli citizen and prior to coming to Australia lived in Israel. He arrived in Australia on 28 October 2005. On 24 November 2006 the Minister’s delegate refused his application for a protection (class XA) visa. On 21 December 2006 the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant claimed (and the Tribunal accepted) that he was a Muslim Arab. He also claimed (in short) that he had met and fallen in love with a woman (“NA”) from Gaza. In 2005 he travelled illegally to Gaza, whence he planned to travel with NA to Egypt to be married. While in Gaza he was kidnapped by Palestinian militants, detained for five days and forced to agree to work for them. He returned to Israel where he was threatened by people linked to the militants.[1]
[1] See the summary at CB 261-262.
The Tribunal:
a)found that the applicant’s claims regarding his kidnapping were implausible and that the applicant was not a credible witness;[2]
b)accepted that the applicant had a fiancée, NA;
c)accepted that mobile telephone calls between Israel and Gaza do not require a prefix code;
d)found that there was no conclusive evidence that NA lived in Gaza, or that the applicant and his fiancée intended to marry;
e)did not accept that the applicant was kidnapped.[3]
[2] Court Book (“CB”) 264-266.
[3] CB 266.
The Tribunal also found it significant that the applicant had delayed seeking protection for 11 months after coming to Australia, and was not impressed by his explanation for the delay. It concluded that the reason for the delay was that the applicant did not have any subjective fear of persecution in Israel.[4]
[4] CB 265-266.
The Tribunal proceeded to reject the applicant’s claims to the extent that they were supported only by his own evidence. On this basis it did not accept that NA lived in Gaza, that she and the applicant planned to marry, that he had travelled to Gaza, or (even if he had travelled to Gaza) that he had been kidnapped there.[5]
[5] CB 266.
The Tribunal also considered and rejected claims that the applicant faced persecution in Israel because of his Palestinian Arab nationality,[6] membership of a particular social group or imputed anti-Israeli opinion.[7]
[6] CB 265.
[7] CB 267-268.

The application for review

At the trial of this matter on 11 December 2007 the applicant relied upon an amended application filed on 31 October 2007. That application raised a single ground concerning an asserted breach of s.425 of the Migration Act 1958 (Cth) (“the Migration Act”).
At the end of the trial of this matter I gave the applicant the opportunity to further amend the application (and to file additional written submissions) to deal with any asserted jurisdictional error in relation to the Tribunal’s consideration of what the position would be if the Tribunal was wrong in respect of its rejection on balance of the applicant’s claims that his girlfriend lived in Gaza, that they intended to marry and that he travelled to Gaza illegally.
Pursuant to that leave the applicant filed a further amended application on 25 January 2008 asserting the following grounds:
1The Tribunal’s decision was affected by jurisdictional error, in that it failed comply with section 425 of the Act in failing to give the Applicant the opportunity to present arguments relating to an issue arising in relation to the decision under review, being the issue of whether the Applicant’s girlfriend lived in Gaza.
Particulars
(i)The Tribunal did not put to the Applicant at the oral hearing on 9 February 2007 that there was any issue as to whether his girlfriend lived in Gaza, save for the issue of whether or not his girlfriend’s telephone number was a Gaza telephone number.
(ii)By letter dated 16 April 2007, the Tribunal invited the Applicant to comment further on his girlfriend’s telephone number.
(iii)By letter dated 30 April 2007, the Applicant provided further information.
(iv)The Tribunal did not, following receipt of that letter, inform the Applicant that the question of whether his girlfriend lived in Gaza remained an issue.
2The Tribunal erred in its finding that that selective enforcement of the law against Palestinian males was application of a law of general application that did not amount to persecution because:
a)the Tribunal failed to take into account country evidence that the law was enforced in a discriminatory manner which was not related to legitimate objects of Israel.
Particulars
(i) The Applicant provided the Tribunal with independent country information that a person in his position who approached the Israeli authorities for protection would be accused of being an Israeli collaborator and would be at risk of serious harm from Palestinian militants; and
(ii) The Applicant also provided reports relating to the treatment of Israeli collaborators by Palestinians and relating to the treatment of Palestinian detainees by Israeli security forces; and
b)there was no evidence to support the finding that the selective enforcement of the law was proportionate.

The evidence

I have before me the court book of relevant documents filed on 26 July 2007. The applicant also relies upon the affidavit of Airlie Bussell made and filed on 18 June 2007. Annexed to that affidavit is a transcript of the hearing conducted by the Tribunal.

Submissions

The applicant relevantly submits as follows in relation to the first ground of review:
The requirement in s 425 of disclosure of issues is similar to that of procedural fairness, which requires that the “critical issue or factor on which the decision is likely to turn” or the “gravamen or substance of the issue or factor”[8] is brought to the applicant’s attention. This does not require a decision-maker to inform a party of his or her preliminary or evaluative conclusions regarding the material upon which the decision-maker proposes to act. However, it does require, as the Full Federal Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd,[9] that where the decision-maker proposes to reach an adverse conclusion which is not an obvious and natural evaluation of the material supplied by the applicant, the applicant be told of the tentative conclusion.[10]
[8] Pilbara Aboriginal Land Council Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at [70] per Merkel J.
[9] (1994) 49 FCR 576, 591C.
[10] Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591E..
The principle in Alphaone was affirmed by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme[11] and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[12]
In SZBEL the High Court was more precisely concerned with the construction and application of s 425 of the Act, which describes the nature of the opportunity for a hearing which is to be afforded by the Tribunal.[13] The Tribunal could, potentially, identify issues additional to those identified by the Minister’s delegate in the decision under review. In those circumstances, s 425 of the Act may require the Tribunal to disclose to the applicant the additional issues. That would occur where the issues are different from those which were identified by the delegate. In such circumstances s 425 requires the Tribunal to disclose the issues to the applicant. The applicant would not know what the issue was if it was not identified by the Minister’s delegate in the decision under review.[14] In SZBEL itself, assessing the factual claims made by the applicant, the delegate had not based his decision on the issue of how the captain of the ship came to know of the applicant’s interest in Christianity, and the captain’s reaction to that knowledge. However, the Tribunal did base its decision on these additional issues, without giving the applicant an opportunity to address them, and so failed to comply with s 425.
Where there is a specific aspect of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must identify that issue to the applicant, and give the applicant an opportunity to address the issue.
The applicant claimed, before the delegate and the Tribunal, that in or around 1998 he formed a relationship with [NA]. [NA] lived in Gaza. The applicant and [NA] visited each other for several years prior to the second Intifada which began in 2000. From that time Israeli citizens were forbidden to enter Gaza and so the applicant and [NA] maintained contact through mobile phone and email.
The applicant also claimed that in April 2005 he resigned from his job and travelled into Gaza illegally. He intended to marry [NA] and move with her to Egypt where they could live together.
The question whether the applicant had a fiancée living in Gaza, whom he intended to marry, and that he travelled to Gaza illegally to see her, was a critical issue in the course of the Tribunal’s reasoning. The Tribunal’s finding that it did not believe that the applicant had a fiancée living in Gaza was the first finding in a series of adverse findings which included the finding that the applicant had not been kidnapped while visiting her in Gaza.[15]
There was no issue before the delegate as to whether or not the applicant had a fiancée living in Gaza. The delegate described the applicant’s statement about his entry into Gaza and intention to marry his fiancée who lived there without questioning it.[16] It was the applicant’s account of his kidnapping which the delegate did not accept. In relation to that matter the delegate asked for further evidence of the relationship with the fiancée and of all the matters relating to the kidnapping, but did not question the claim that the fiancée lived in Gaza. It was the issue of whether the applicant was kidnapped in Gaza which the delegate decided adversely to the applicant.[17]
The applicant sought to provide evidence in response to a letter sent pursuant to s 424A of the Act by providing evidence that mobile phone calls between Israel and the Occupied Territories do not require a prefix code.[18] On this matter he satisfied the Tribunal.[19] However he was not alerted either by the s 424A letter or any other correspondence, or at the Tribunal hearing to there being any issue about whether or not his fiancée lived in Gaza.
The s 424A letter[20] quoted a passage which referred to a number of aspects of the applicant’s visits to Gaza to see his fiancée. It identified only two issues arising from that passage. One concerned the mobile telephone number the applicant gave as his fiancée’s number, raising a question whether the absence of a prefix for Gaza indicated that the number could not have been a number in Gaza. The other concerned the applicant’s symptoms of post-traumatic stress. The applicant in response sought to deal with these matters. The Tribunal did not alert him to there being any issue about whether or not his fiancée lived in Gaza. Indeed the s 424A letter left him with the understanding that the Tribunal did not differ from the delegate in seeing this as a factual matter which was not in issue.
The transcript of the hearing before the Tribunal indicates that the Tribunal did not raise with the applicant any issue about whether he actually had a fiancée living in Gaza.[21] In fact the Tribunal indicated it accepted this claim when it asked him whether he had money when he went to visit her in Gaza.[22] This was not a matter of the Tribunal’s failure to tell the applicant what was the significance of the questions it asked him. It was a matter of the Tribunal failing to raise the issue at all by way of question, but rather assuming, and conveying, that this part of his account was not doubted, as was the case before the delegate.
[11] (2003) 216 CLR 212 at [22]. See also Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 CLR 437 at [86].
[12] (2006) 81 ALJR 515.
[13] (2006) 81 ALJR 515 at [33].
[14] (2006) 81 ALJR 515 at [35].
[15] CB 266.7.
[16] CB 88.2, 88.9, 88.10-89.1, 90.2.
[17] CB 89.10.
[18] CB 210.
[19] CB 266.7.
[20] CB 206.
[21] Affidavit of Airlie Bussell, 18 June 2007, Annexure AB1.
[22] Affidavit of Airlie Bussell, 18 June 2007, Annexure AB1, p15.5.
In relation to the second ground of review the applicant relevantly submits as follows:
The Tribunal:
(i)found that even if Israel’s security law was enforced selectively against Palestinian males, the application of that law in these circumstances was appropriate and adapted to achieving a legitimate object of Israel;
(ii)found there was proportionality between the means employed to achieve the object and the additional burden placed on Palestinian males;[24]
(iii)held that if the law was applied to the applicant it would not amount to persecution;[25]
(iv)rejected claims as to how the Israeli authorities would treat the applicant because he had travelled illegally to Gaza, associated with Palestinian extremist groups associated with the enemy; for being a Palestinian collaborator; for being a risk to national security; and possible withdrawal of his Israeli citizenship;[26] and
(v)rejected the applicant’s claim that he would be mistreated because of his Palestinian Arab ethnicity, Palestinian nationality, imputed political pro-Palestinian, anti-Israeli political opinions; imputed membership of the particular social group of Hamas supporters and membership of the particular social group of his family; or that as an “Arab of 48” he would receive a punishment greater than that given to a Jewish Israeli citizen.[27]
[24] CB 267.1.
[25] CB 267.2, 269.3.
[26] CB 267.3.
[27] CB 267.5.
The Tribunal rejected the claims because it found the country evidence did not support them and that so far as the applicant was concerned he had never been detained by Israeli authorities and the Israeli authorities had not caused him any harm in any way; his house had not been demolished, or his village not recognised; and he had not been restricted in travelling to Gaza and he had not sought protection from the Israeli authorities.[28]
[28] CB 267.7.
Ground 2(a): Failure to take into account relevant consideration
The Tribunal’s finding (iii) proceeds on the assumption that factual findings favourable to the applicant had been made. The finding was made on a basis of acceptance that the applicant illegally travelled to Gaza and that if he were returned to Israel the applicant would be identified by the authorities as a person who had sought asylum in Australia. Even on this factual basis the Tribunal found that the applicant would not suffer persecution because Israeli authorities would apply security laws of general application.
The Tribunal failed to take into account country evidence that security laws in Israel are enforced in a discriminatory manner in relation to persons of Palestinian Arab ethnicity to an extent which goes beyond the legitimate objects of Israel.
The applicant provided the Tribunal with independent country information that if a person in the position of the applicant approached Israeli authorities for protection he would be accused of being an Israeli collaborator and would be at risk of serious harm from Palestinian militants.[29] This was supported by numerous reports from different independent sources relating to the treatment of Israeli collaborators by Palestinians.[30]
[29] CB 248.7.
[30] CB 248.10 – 249.1.
The applicant also provided the Tribunal with reports, including a report from the US State Department that there occurred serious abuses by members of the Israeli security forces against Palestinian detainees.[31]
[31] CB 249.10 – 253.3. See also CB 248.4.
In making finding (iv), the Tribunal failed to refer to this evidence or to evaluate it. The finding is a bald rejection, even given the assumption for these purposes in favour of the applicant that he had travelled illegally to Gaza, of the applicant’s claims as to the practices of Israeli authorities. The Tribunal failed to take into account a relevant consideration it was bound to take into account, namely the country evidence on the issue before it.
Ground 2(b): No evidence for findings that application of security laws legitimate and proportionate
There was no evidence to support the Tribunal’s findings (i) and (ii) that the selective enforcement of security laws by the Israeli authorities was proportionate.
A law or policy that results in discriminatory treatment amounts to persecution where the treatment is not appropriate and adapted to achieving some legitimate objective of the country concerned.[32] The means adopted must be proportionate to the achievement of the objectives, in that they do not “[offend] the standards of civil societies which seek to meet the calls of common humanity”.[33]
In Applicant S v Minister for Immigration and Multicultural Affairs[34] Gleeson CJ, Gummow and Kirby JJ held that a security law or policy whose objective is to protect the nation is generally an entirely legitimate national objective and so cannot constitute persecution. However the object’s legitimacy can be affected by an evaluation according to international standards of the nature of the political authority which is applying the law or policy. Even if it be accepted that a national objective is legitimate, the conduct of authority in applying it may not be “appropriate and adapted”:
.. assuming for a moment that the object was legitimate national objective, it appears that the conduct of the Taliban could not have been considered appropriate and adapted, in the sense of proportionate in the means used to achieve that objective. The policy of conscription described by the evidence was implemented in a manner that was random and arbitrary. According to the Tribunal, this would not be condoned internationally.
These conclusions by the Tribunal indicate that, had it by application of the correct principles respecting ‘perception’ reached the stage of considering whether no more was involved than a law of general application, the Tribunal correctly would have concluded that the Taliban was to pursuing a ‘legitimate national objective’ spoken of in Chen.” [footnotes omitted].[35]
In the present case the Tribunal failed to consider the correct issue. This was whether, accepting that security was a legitimate national objective of Israel, the means adopted by the Israeli authorities were appropriate and adapted to that objective or, in other words, proportionate to that object. The Tribunal simply asserted that they were, without reference to any supporting evidence. There was no supporting evidence. All the evidence to which the Tribunal referred pointed to a finding that the means employed by the Israeli authorities against suspected Palestinian militants were disproportionate. The applicant provided independent country evidence that Israeli authorities acted in a disproportionate manner, in particular in relation to Palestinians in detention, and especially towards those suspected of involvement in groups such as Hamas. The Tribunal accepted country evidence that discrimination against Palestinian Arab citizens of Israel occurs.[36] The Tribunal failed to explain why this discrimination was not disproportionate.
Had the Tribunal considered and evaluated the content of the country information it accepted, it would have been plain that the treatment described was so extreme that it could not be described as proportionate to the objectives of Israel by reference to international standards of common humanity. The Tribunal failed to apply that test to the evidence before it or to evaluate the content of the country information at all.
It was no answer for the Tribunal to refer to the fact that the applicant had never been detained by the Israeli authorities.[37] After he was kidnapped and received threats, the applicant went into hiding in Israel and left as soon as he had the funds. The question was whether, accepting his claim of having illegally travelled to Gaza, and that he would be identified as a an asylum seeker on his return to Israel, there was a real chance that he would be detained and suffer persecution, by reason of treatment in detention which was disproportionate in terms of the test in Applicant S. The Tribunal failed to ask, or properly consider, this question.
[32] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 258 per McHugh J.
[33] Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [29].
[34] (2003) 217 CLR 387.
[35] (2003) 217 CLR 387 at [48] – [49].
[36] CB 267.6.
[37] CB 267.7.

The Minister submits that there was no breach of s.425 for four reasons:
First, the delegate’s decision concluded generally that the Applicant’s claims were “unsubstantiated and lack credibility”. The delegate’s difficulties centred upon the kidnapping story, but he also noted that the Applicant “has provided no evidence of his relationship with [NA]”.[38] The delegate was also influenced by the Applicant’s delay in applying for protection and, in light of the “lack of credible evidence”, was not “satisfied that the applicant’s situation is as claimed”.[39]
The delegate was thus unsatisfied with all aspects of the Applicant’s claims, including even the existence of a relationship with NA (let alone where she lived). That, together with the Tribunal’s advice that it was unable to make a favourable decision on the papers,[40] placed the Applicant squarely on notice that every element of his claims needed to be made good.[41]
Secondly, the Tribunal did not engage in any separate process of reasoning in relation to where NA lived. As noted above, the Tribunal concluded that the Applicant was not a credible witness, for reasons relating to other aspects of his claims. It accepted that he had a relationship with NA, having been shown copies of SMS messages between them; but, given its view about the Applicant’s credibility, it did not accept other aspects of his claims that relied only on his evidence. One of those elements was that NA lived in Gaza.[42] The finding in relation to her place of residence was thus a consequence of the rejection of his credibility for other reasons. It was not in itself an “issue arising” in relation to the decision under review.
In relation to these first and second reasons, it should be borne in mind that the principles of procedural fairness reflected in s.425 have never required a decision-maker to disclose what he or she is minded to decide, or give a running commentary on what it thinks about the evidence put before it by an applicant.[43] If the Tribunal thought that the Applicant’s claims as presented at the hearing were unconvincing, it was not obliged to tell him so. Still less was it obliged to draw his attention to subsidiary elements of his claims that might not survive a general adverse credibility finding, and invite him to improve on those elements.
Thirdly, a different conclusion about where NA lived could not have changed the Tribunal’s overall decision (or, to put it another way, there was an independent basis for the decision that did not rely on this particular finding). Having expressed the conclusions referred to in the previous paragraph, the Tribunal went on to consider what the position would be if (contrary to those findings) the Applicant had indeed travelled illegally to Gaza[44] (his claim being, of course, that he had travelled there to see NA).
Fourthly, the findings which flowed from the Applicant’s delay in seeking protection involved an express conclusion that when he came to Australia “he did not have any subjective fear of persecution in Israel”.[45] None of the Applicant’s claims raised a possibility that he had come to fear persecution by reason of later events.[46] The finding that the Applicant did not have a subjective fear of persecution was in itself fatal to his application.
This finding was not dependent in any sense on the finding concerning where NA lived. As noted above, the Tribunal’s reasoning clearly flowed in the opposite direction: it was not satisfied about where NA lived, simply because it had formed an adverse view of the Applicant’s credibility.
[38]    CB 88.
[39]    CB 93.
[40]    CB 104.
[41]    Cf. SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152, 163 [36], [43], [47].
[42]    CB 266.
[43]    SZBEL 228 CLR at 166 [48].
[44]    CB 266-267.
[45]    CB 266.
[46]    Cf. S76 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 120 at [21].
Further, in relation to the second ground of review the Minister submits as follows:
The proposed new ground of appeal attacks the Tribunal’s finding that “even if” the Applicant had travelled illegally to Gaza (which it did not accept), the consequences that he would face did not amount to persecution for a Convention reason.[47]
That finding is a genuine alternative to the reasoning which is attacked by the existing ground of review (i.e., the rejection of the claim to have travelled to Gaza illegally – which, according to the Applicant’s principal submissions, involved a breach of s.425 of the Migration Act 1958). The new ground therefore does not need to be considered, if (as the Minister has submitted) the rejection of the Applicant’s primary claims did not involve any breach of s.425. The Applicant must succeed on both grounds.
The Applicant’s first complaint (ground 2(a)) is that the Tribunal failed to “take into account country evidence” that would have supported a contrary conclusion.
The Tribunal had set out this material at length earlier in its reasons.[48] Since the Tribunal is under no statutory obligation to discuss material upon which it chooses not to rely, there is no proper basis for an inference that the Tribunal failed to read or evaluate that material. In any event, failure to advert to evidence, which might have supported a different conclusion, is qualitatively different from failing to consider an issue or a claim to which such evidence might relate. The latter may well be an error going to jurisdiction; the former is not.[49]
The Tribunal’s finding concerning the possibility of being regarded as a collaborator[50] was, like the other findings recorded in the same paragraph, a consequence of its rejection of the Applicant’s principal claims: he had no reason to approach the Israeli authorities for protection, if he had not (as he claimed) been approached and threatened by a militant group. This finding does not have a bearing on the new ground of review.
The second complaint (ground 2(b)) is that there was “no evidence to support” the Tribunal’s finding that the application of the law in question was proportionate.
In dealing with this complaint it should be kept in mind that the Tribunal’s reference to the law being “enforced” selectively cannot be taken at face value. There was nothing to suggest that the laws would be enforced more strictly or harshly against the Applicant than against other persons who breached them – let alone on a Convention ground – and any finding to that effect would be very likely to lead to the conclusion that the harm faced amounted to persecution. The Tribunal should be understood as having accepted that Israel’s security laws placed a particular burden on Palestinian males, rather than that there was selective enforcement of those laws.
The issue before the Tribunal was thus whether the laws were appropriate and adapted to the legitimate national objective of protecting Israel’s security. Evidence of mistreatment of prisoners or killings by security forces (activities at least prima facie not sanctioned by law) did not go to that issue.[51] In any event, pointing to evidence that could have led to a different conclusion does not assist the Applicant in judicial review proceedings.
The Tribunal referred to the context in which strict security measures had been adopted, including the presence of militant organisations in Gaza and the launching of suicide attacks from there.[52] The measures to which the Tribunal referred apparently consisted of the closure of border crossings and a “de facto travel ban on Palestinian males aged sixteen to thirty-five”.[53] Whether those measures were “appropriate and adapted” to protect Israel’s security against the threats referred to was an issue for analysis by the Tribunal. The conclusion that the Tribunal reached was open to it.
[47]    CB 266-267.
[48]    CB 248-253.
[49]    See Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [46].
[50]    CB 267.3; Applicant’s supplementary submissions at [3.3].
[51]    Cf. Applicant’s supplementary submissions, at [3.4], [4.4].
[52]    CB 268.9.
[53]    See the 2004 Human Rights Watch report, quoted at CB 258 and cited by the Tribunal at 267.1.

Reasoning

In SZBEL at [25]-[31] the High Court stated:
Counsel for the respondent Minister correctly submitted, at the outset of his argument of the appeal to this Court, that "what is required by procedural fairness is a fair hearing, not a fair outcome". As Brennan J said, in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. As Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation:
[T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity ['to correct or contradict any relevant statement prejudicial to their view'] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. (emphasis added)
In the present case, attention in argument, both in this Court and in the courts below, was directed more to the particular circumstances of the case than to the relevant statutory framework, but it is necessary to notice some aspects of that framework. Unless that is done, the argument proceeds at too high a level of abstraction and may proceed upon assumptions that are ill founded.
First, the Migration Act 1958 (Cth) ("the Act") obliged the Tribunal to "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review". The Tribunal was not bound to extend such an invitation to appear, if it considered that "it should decide the review in the applicant's favour on the basis of the material before it".
Secondly, the Act empowered the Tribunal to seek additional information that it considered relevant, and obliged the Tribunal to give to an applicant particulars of certain information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. That latter obligation did not apply to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member".
No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone. The Full Court (Northrop, Miles and French JJ) said:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added)
Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the Tribunal arrived at its decision?
Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged.
The Court continued at [35]-[37]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
The High Court concluded that, on the facts of the matter before it, the applicant was not on notice that his account of how his interest in Christianity came to be known was open to question. The Court found that in the circumstances the Tribunal did not accord the applicant procedural fairness. However, the High Court made three further general points at [47]-[49]:
First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility.
In this matter I accept that the delegate did not specifically deal with the applicant’s claim that his girlfriend lived in Gaza. Rather, the delegate addressed specifically the applicant’s claims in respect of the harm he said he suffered as a result of being kidnapped in Gaza and found that the applicant’s account lacked credibility. The delegate’s decision is reproduced at CB 81 to CB 94. After discussing the applicant’s claims the delegate found, at CB 88, that the applicant’s claims were unsubstantiated and lacked credibility. The delegate said that the absence of verifiable detail and lack of credibility of the applicant’s kidnapping in Gaza and subsequent pursuit led him to believe that the applicant’s situation was not as claimed. The delegate then went on to address in more detail his concerns about the applicant’s claims of his kidnapping in Gaza. The delegate did not exclude the possibility that the applicant had a girlfriend in Gaza, although the delegate noted that the applicant had provided no evidence of his relationship with NA, such as photographs, letters or e‑mails.

In my view, it followed from the findings of the delegate that the applicant was on notice that the existence of his relationship with NA was likely to be an issue on review. Further, the applicant was on notice that the credibility of his claims of kidnapping would be in issue. However, I do not think it follows from the delegate’s decision that the applicant was on notice that the physical location of his girlfriend in Gaza (if he had a girlfriend) was in issue on the review.
The Tribunal decision is reproduced at CB 225 to CB 270. The Tribunal’s description of the hearing held on 9 February 2007 indicates (and the transcript confirms) that the applicant was asked questions in order to verify that he had a relationship with NA. The applicant was also asked questions by the Tribunal at the hearing about NA’s telephone number which bore on her asserted location in Gaza, although the applicant was not specifically told by the presiding member that NA’s location in Gaza was subject to doubt.
The Tribunal analysed the applicant’s claims in essentially the same way as the delegate. The Tribunal considered and rejected as not credible the applicant’s claim to have been kidnapped in Gaza. In so doing, the Tribunal did not address the asserted reason why the applicant claimed to have gone to Gaza (namely to visit his girlfriend). At CB 264 to CB 266 the Tribunal found that the applicant’s specific claims of the harm he suffered and was at risk of suffering were implausible. The Tribunal also took into account the applicant’s delay in lodging his protection visa application as being inconsistent with a subjective fear of harm. The Tribunal then concluded[54]:
Having regard to the above the Tribunal finds that the applicant is not a credible witness and that his evidence is not credible. The Tribunal rejects his claims of being kidnapped, being asked to find Israeli spies, he and his family and fiancée being threatened, his having to leave Israel due to the threats on his life, and subsequent contact between the apparent kidnappers and his mother and brother. In reaching these findings the Tribunal has attached no weight to the STARTTS assessments as support for the applicant’s claims regarding Gaza because they contain no reference to Gaza.
[54] CB 266
It is only after that point that the Tribunal considers the applicant’s relationship with NA. The Tribunal accepted that NA was the applicant’s fiancée. That acceptance was based on the physical evidence of SMS messages between the two. Curiously, notwithstanding the Tribunal’s finding that NA is the applicant’s fiancée, the Tribunal did not accept that NA lives in Gaza or that she and the applicant intended to marry. That was because there was no “conclusive” evidence of that apart from the applicant’s own assertions. In other words, because the Tribunal had rejected the applicant as a credible witness, the Tribunal was unwilling to accept the applicant’s assertion about NA’s location and their intention to marry based only upon that assertion. In my view, the finding in relation to the location of NA is merely a consequence of the rejection of the applicant’s claims of past persecution and not itself a link in the chain of reasoning leading to the outcome of the review application. On that basis, I distinguish this case from SZBEL.
For the foregoing reasons, I find that the applicant has failed to establish the asserted breach of s.425 of the Migration Act.
Further, the Tribunal went on to consider what the position would be if it was wrong and the applicant did travel illegally to Gaza (by implication to visit his girlfriend who lived there). Having disposed of the applicant’s claims on the basis of credibility, even if there is a jurisdictional error in the alternative reasoning of the Tribunal in relation to the possibility that the applicant’s claims were true, the applicant can have no complaint unless the credibility finding was itself vitiated by jurisdictional error. In that regard I accept the Minister’s submission that the applicant cannot succeed unless he is successful on both grounds of review attacking the principal and alternative bases of reasoning adopted by the Tribunal.
I have found no jurisdictional error in the Tribunal’s principal basis of reasoning, which involved the adverse credibility findings discussed above. While not strictly necessary to do so, I have also considered the second ground of review attacking the alternative basis of the Tribunal’s reasoning, which would become relevant should I be wrong in relation to the asserted breach of s.425 of the Migration Act.
The Tribunal’s alternate reasoning is set out at pages 266 and 267 of the court book. Relevantly, the Tribunal said:
In any event, even if the Tribunal is wrong and the applicant did travel illegally into Gaza, as the Tribunal does not accept that he was kidnapped in Gaza, there is nothing to lead the Israeli authorities to suspect that he illegally entered into Gaza, and the Tribunal finds that there is not a real chance of persecution as a result. Even if the applicant did travel illegally to Gaza, and he is later discovered by the Israeli authorities, he would be subjected to a law of general application, based on Israel’s security concerns. In this regard, Gaza is ruled by the Hamas Party which has a militant affiliated organization, Izzedine al Qassam brigade. Further, the Islamic Jihad and al-Aqsa Brigade, amongst others, are also present in Gaza (BBC News). Because suicide attacks in Israel have emanated from Gaza, the Israel authorities have tightened the security of the borders (HRW 2004). The Tribunal finds that even if the law is enforced selectively against Palestinian makes, (HRW 2004), the application of the law in these circumstances is appropriate and adapted to achieving a legitimate object of the country concerned (Israel) (Applicant A), and there is proportionality between the means employed to achieve the object and the additional burden placed on Palestinian males (Applicant S). As such, the Tribunal finds that if the law is applied to the applicant, it does not amount to persecution.
It can be seen that this passage contains a cascading series of alternative findings. First, the Tribunal found that there was no real risk of the applicant suffering harm from the Israeli authorities because they did not know that the applicant had illegally gone to Gaza. Secondly, even if such illegal travel was discovered by the Israeli authorities, the Israeli security law which he feared was a law of general application. Thirdly, even if the law was applied in a discriminatory fashion against the applicant as a member of a class of Palestinian males, it was a legitimate and proportionate response by the Israeli State to a serious security concern. Accordingly, the Convention offered the applicant no protection.
Plainly, the Tribunal had regard to country information in reaching these findings. The references HRW 2004 and BBC News are references to particular pieces of country information. The Tribunal was prepared to accept that the Israeli security law might be applied in a discriminatory fashion against Palestinian males, including the applicant. The country information the Tribunal had before it was extremely extensive and pointed to a range of issues, including discrimination against Palestinians, racial profiling by the Israeli authorities and the extremely difficult position that Israeli security forces found themselves in, in attempting to balance their obligations in a democratic State with severe security risks posed by Palestinian extremists. Whether one agrees or disagrees with the Tribunal’s reasoning, it cannot be said that the findings made by the Tribunal were unreasoned. The Tribunal’s analysis is supported by reference to two decisions of the High Court: Applicant A v Minister for Immigration (1996-1997) 190 CLR 225; Applicant S v Minister for Immigration (2004) 217 CLR 387.
In Applicant A, his Honour McHugh J (at 258), observed that conduct will not constitute persecution if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. His Honour made a further observation that a legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens.
In the decision of Applicant S, Gleeson CJ, Gummow and Kirby JJ at [44], stated that while the implementation of laws for the purpose of promoting the general welfare of the State and its citizens may place additional burdens on the members of a particular race, religion, nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of such laws is not persecutory. Their Honours made reference to the judgment in Chen v Minister for Immigration (2000) 201 CLR 293.
In Chen at [29], the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, expanded on the criteria:
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.
It is not within the scope of this Court’s jurisdiction to explore the merits of a Tribunal decision. However, the comments quoted above in Chen refer to circumstances considerably different from those considered by the Tribunal in this case.
In any event, the Tribunal had before it, and made reference to, a variety of country information as well as relevant High Court decisions. On that basis, I conclude that the Tribunal’s findings on the security concerns of the State of Israel as well as the proportionality of precautionary measures taken by Israel were open to it on the material before it.
I cannot accept the applicant’s contention that it in doing so the Tribunal overlooked relevant material. The Tribunal referred to some relevant material. Its failure to refer expressly in this part of its reasons to all of the relevant material available to it does not establish that the Tribunal failed to take into account that material. It cannot be seriously argued that only one conclusion was open on that material, and that a different conclusion means that the relevant material was overlooked. The issue was an important one and the Tribunal needed to engage in an active intellectual process in dealing with it. The reasoning demonstrated by the Tribunal is not detailed, but it is in my view sufficient. Neither can I accept the contention that there was no evidence to support the Tribunal’s conclusion on the issue of proportionality. The Tribunal made reference to independent country information regarding the security crisis in Israel; it also gave consideration to country information and (elsewhere in its reasons) submissions provided by the applicant. The Tribunal made a finding that discrimination against Palestinian and Arab citizens of Israel does occur, however, it did not accept that the discrimination was persecutory. The mere fact that the evidence the Tribunal has referred to in other parts of its decision does not appear in the paragraph where the finding on proportionality is made, cannot lead to the conclusion that the finding was without a rational basis, or made in the absence of evidence. To find otherwise would, in my view, be to stray impermissibly over the line into an analysis of the merits of the Tribunal decision.
I reject the second ground of review.
Accordingly, I will order that the application be dismissed. As to costs, the parties were put to additional expense in consequence of the leave granted by me at the trial of this matter. Those costs should lie where they fall. I will not depart from the prescribed costs in migration proceedings under the Rules of this Court.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 22 February 2008

[23] CB 267.1, 269.2.