Tirane v Minister for Immigration and Multicutural Affairs
[1999] FCA 207
•10 MARCH 1999
FEDERAL COURT OF AUSTRALIA
Tirane v Minister for Immigration & Multicutural Affairs [1999] FCA 207
MIGRATION – credibility – whether applicant given adequate opportunity to respond to evidential findings – whether reliance can be placed on indications by Tribunal – whether unfair procedure – whether well-founded fear of persecution
Migration Act 1958 (Cth), s 420, s 476(1)(a) & (e)
Eshetu v MIMA [1997] 71 FCR 300
Kioa v West (1985) 159 CLR 550
Somaghi v MILGEA (1991) 102 ALR 339
Meadows v MIMA (unreported, 23 December 1998, Einfeld, von Doussa and Merkel JJ,)
RACHID TIRANE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1337 OF 1998
DOWSETT J
10 MARCH 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 1337 OF 1998
BETWEEN:
RACHID TIRANE
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
DOWSETT J
DATE OF ORDER:
10 MARCH 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the respondent’s costs of the application..
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 1337 OF 1998
BETWEEN:
RACHID TIRANE
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
DOWSETT J
DATE:
10 MARCH 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application pursuant to s. 476 of the Migration Act1958 (Cth) for review of a decision of the Refugee Review Tribunal affirming the respondent’s refusal to grant the applicant a Protection Visa.
The applicant is a citizen of Algeria. He arrived in Australia on 21 August 1998 with his sister, her husband and two children. At the airport, before passing through the Immigration and Customs checkpoints, he entered a toilet. A razor blade was later found in a cubicle. The applicant admitted that he had used this blade to slash all five passports and then flushed them down the toilet. This was done to avoid their being sent back to Algeria. He was detained and interviewed. Statements made by the applicant to the Immigration Inspector at the time were treated as important in rejecting his application.
Statements to the Immigration Inspector
In giving his antecedents, the applicant said that he was educated to Year 10. He claimed that he left Algeria “…because nobody can live in the circumstances we are living in there” and that a massacre had occurred 15 kilometres from the place where he lived. He did not remember in which year this had occurred. He said that his uncle and cousin had been kidnapped and not seen again. He stated that he had never been in jail, nor had he or his family been persecuted for any reason. He left Algeria because he was “…tired of living in fear and tired of living subject to death threats every day.” He also said that, should he go back, ‘they’ may ask him to join the army and that he would be subject to arrest at any time. He said that he was “…just a normal citizen” and did not belong to any political party, that he did not have any ideologies, but that “lots of people” were arrested and it could happen to him.
Claim to Refugee Status
A refugee is entitled to a Protection Visa. The term “refugee” is defined as a person who,:
“owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country … .”
The applicant’s claim for refugee status has three grounds:-
that if he returns to Algeria he will be required to do military service;
that his and his family’s involvement with the Islamic Front (FIS) place him in significant danger; and
general conditions in Algeria.
Only ground (2) is a permissible basis for refugee status, but I will consider the factual matters relating to the other grounds as being relevant background material. The application was supported by a statutory declaration which was not entirely consistent with his initial statement, nor with information concerning conditions in Algeria to which the Tribunal had access. In par 24, he said of persons called up for a second time that “some were killed, others were never heard from again”. This may suggest that the applicant fears that the call-up is a subterfuge designed to deal with him for his views rather than a genuine call-up for military service. This might also be a basis for refugee status. However the rest of the paragraph makes it clear that his real concern is with military service. Pages 8, 9, 14, 15 and 16 of the transcript support this conclusion.
Conditions in Algeria
The Tribunal considered that the situation in Algeria was complex and difficult to understand. It accepted that both the government and armed Islamic groups had been responsible for many deaths and atrocities. The applicant did not allege any previous threat of persecution directed at him personally, other than somewhat vague references to incidents which had occurred when police came searching for a cousin. The Tribunal did not challenge the applicant’s contention that he has a general fear of harm as a result of the conflict in Algeria.
Military Service
The applicant asserted that he was exempted from military service in 1988 because of coloured blotches on his neck. He obtained a passport in 1995 after producing evidence of his exemption. He travelled to Saudi Arabia in 1995, 1996 and 1997 without difficulty and on the first two occasions, returned to Algeria, also without difficulty. He said that after he left in 1997, his family received a notice directing him to attend for military service. He was then thirty years of age. He said that he had heard of persons being called up for military service on a second occasion and claimed that some were killed or disappeared. He said that he did not wish to serve in the army. Information available to the Tribunal revealed that Algerian citizens are liable to military service at the age of nineteen but are exempted after attaining the age of thirty years. Prior to 15 January 1990 service was for two years. Since that date service has been for a period of eighteen months.
The applicant was born on 16 July 1967 and so was liable to service after 16 July 1986. In his sister’s luggage was a school certificate in the applicant’s name dated December 1985, indicating that he attended school in the 1985/86 year. He claimed to have left school in 1988. The Tribunal inferred that he had performed his military service in 1986-88. This inference appears to have been based on an assumption that the school certificate probably reflected his ultimate educational achievement, his age and his claim to have gone to Year 10 at school. It may also have relied on the fact that he had been allowed to leave the country three times and to return twice without difficulty. The only evidence contrary to the Tribunal’s conclusion is his assertion that he was at school until 1988 and then was exempted from military service because of ill-health. Although it is hard to know, “coloured blotches” on the neck seem unlikely to have earned permanent excuse from military service. It is similarly unlikely that he would next hear from the military authorities after his thirtieth birthday.
Involvement with the FIS
In the initial interview, the applicant claimed to have had no political associations. Before the Tribunal he claimed that he and his family “…live in a state of fear or worry” and that families with members in the FIS were more likely to be taken away and killed. He said that he was never a member of the FIS, but rather a sympathiser. He voted for them in the municipal elections in 1991 but never attended political demonstrations. The Tribunal pointed out that most people in Algeria had voted for the FIS in 1991. He made numerous specific claims of harassment against himself and his family. I summarize the various incidents in the order in which they appear in his declaration. This does not reflect their actual temporal sequence.
(a)He gave up work as a driver because he had heard that many drivers and passengers had been killed.
(b)In 1996 the army arrested his sister’s husband and killed a person described as “Yassen” also known as “Salem”. Later in the declaration, he is identified as the applicant’s cousin’s brother-in-law.
(c)The applicant’s cousin’s brother disappeared in 1994 after being arrested by the army.
(d)In 1994 the applicant’s uncle (an Imam) was arrested. The Imam’s son was arrested a little later. They have disappeared. This appears to have been the incident referred to in the initial interview.
(e)One of the applicant’s brothers-in-law was arrested and sentenced to seven years imprisonment in 1995 because he was an active supporter of the FIS.
(f)The applicant’s cousin, Mohamed Wahid, disappeared “a long time ago”. It seems that he went into hiding because he was wanted by the authorities. He was a supporter of the FIS.
(g)The police went to the family home in 1992 and arrested the applicant’s cousin’s brother-in-law.
(h)On a later occasion in 1992 the police again came to the house looking for Wahid but took the applicant and his brother to the police station, where files were created and they were interrogated. The applicant was at the station for about forty-five minutes. He was subsequently released. He claimed that “I was threatened that if I was involved in any groups they would come and find me.” The applicant believed that the police may have returned to the home for a third time in 1992 but on that occasion, no one was arrested.
The police came to the family home at least twice in 1994, having already arrested the applicant’s cousin’s brother (presumably also the applicant’s cousin).
(j)In 1997 the police came to the house on three or four occasions. He says that on one occasion, there were about ten officers, some in military uniform, some in police uniform and some in plain clothes. They threatened the applicant that unless his cousin surrendered himself, they would take the applicant instead.
The Tribunal considered that the applicant had exaggerated his involvement with the FIS. It was prepared to accept some of the applicant’s claims, particularly relating to interrogation by police in 1992, but did not accept that official attention continued for years thereafter. The Tribunal noted that none of the applicant's immediate family in Algeria had experienced difficulties despite the alleged visits by the authorities. This led the Tribunal to the conclusion that the applicant’s profile was unlikely to lead to problems with the Algerian authorities.
Grounds for Review
The applicant seeks review on two grounds. The first arises out of the Tribunal’s adverse conclusion as to his credibility based upon its rejection of his claims concerning military service, harassment of him and his family and as to his involvement with the FIS. The applicant complains that he was not informed that an adverse finding as to his credibility might be formed and that he was given no opportunity to address such a finding. It is said that the Tribunal failed to “act in accordance with substantial justice and the merits of the case” as required by s 420(2)(b). The second ground is that the Tribunal applied an incorrect test in determining whether the applicant was likely to suffer persecution in accordance with the Convention definition.
The Act
Section 476 provides relevantly as follows:-
“(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b)that the person who purported to make the decision did not have jurisdiction to make the decision;
(c)that the decision was not authorised by this Act or the regulations;
(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f)that the decision was induced or affected by fraud or by actual bias;
(g)that there was no evidence or other material to justify the making of the decision.
(2)The following are not grounds upon which an application may be made under subsection (1):
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.”
Paragraphs 476(1)(a) and 476(1)(e) are relevant for present purposes. The ambit of review has been the subject of some controversy in recent cases. The difficulty may be identified from the decision of the Full Court in Eshetu v MIMA (1997) 71 FCR 300. In order to understand the decision it is necessary to have regard to s 420 which provides:-
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objection of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.”
In Eshetu Davies J considered that s 420 provides, in effect, a “code” of procedural and substantive requirements and that any decision which fails to comply with that section is reviewable pursuant to s 476. In effect, s 420 establishes identifiable procedural standards which take the place of the rules of natural justice. Burchett J took a somewhat different view, concluding that s 420 and s 425 (which relates to procedure before the Refugee Review Tribunal), together with s 476(1) confer “enforceable statutory rights equivalent to those provided at common law by the principle of natural justice …”. His Honour concluded that s 476(2) is intended only to reflect the fact that for the future, any procedural complaint is to be dealt with as a breach of the provisions of the statute and not by reference to the concepts of natural justice. I understand that the respondent asserts a view of the procedural requirements of the Act which is narrower than either of these views. The decision is, as I understand it, under appeal to the High Court, but I am presently bound by it. There is obviously a possibility that the different approaches adopted by Davies J and Burchett J may lead to different outcomes, but that seems unlikely in the present case.
Procedural Irregularity
Although the applicant’s submission has a number of aspects, the thrust is that he had no notice of any intention to make an adverse finding as to his credibility. The obligation to give such notice was described by Mason J (as his Honour then was) in Kioa v West (1985) 159 CLR 550 at 587 as follows:-
“The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter.”
See also the comments to similar effect by Gibbs CJ at pp 568-9.
In Somaghi v MILGEA (1991) 102 ALR 339 both Jenkinson J and Gummow J suggested a rather more expanded obligation. At p 348 Jenkinson J said:-
“But there are observations, which may be thought to constitute a gloss on the general rule, that favour a requirement that the applicant have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it … . There are other observations, which may be thought to constitute another gloss on the general rule, that an unfavourable animadversion, by the decision-maker or expressed by a departmental officer to the decision-maker, upon the conduct of an applicant, or even of another person whose interest in a decision favourable to the applicant is to be weighed by the decision-maker, should be disclosed to the applicant so that he may respond, if the animadversion is not an obviously natural response to the circumstances which evoked it … .”
Gummow J said at p 359:-
“However, in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant’s interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question.”
The recent decision of the Full Court in Meadows v MIMA (Unreported, 23 December 1998, Einfeld, von Doussa and Merkel JJ) may also be of some relevance. In that case, two letters were tendered by applicants for Protection Visas as part of their case before the Tribunal. The Tribunal concluded that the letters had been fabricated for the purpose of supporting the applications. In the course of the hearing, the Tribunal had said to the applicants “I am not accusing you of anything”. Von Doussa J said:-
“Proceedings before the Tribunal are, of course, not adversarial, but the same notion of basic fairness that underlies the rule in Browne v Dunn required that the Tribunal before making a finding of dishonesty that would be destructive to the applicant’s case, give to the applicants the opportunity to address that issue in their evidence… . The statement of the Tribunal during the hearing…that “I am not accusing you of anything” dispelled the possibility that any suspicion attaching to the timing of the letters was a suspicion that the applicants themselves had participated in the fabrication of their evidence.”
The substance of the present applicant’s complaint is that he was not warned of the possibility of his evidence being rejected. Indeed, it is suggested that he was encouraged to think to the contrary. It is necessary that I consider the specific acts said to constitute such encouragement.
The first relates to the high school certificate. It is said that the applicant reasonably assumed that he had satisfied the Tribunal that it did not relate to his last year at school. It was clearly put to the applicant that the Tribunal was inclined to infer that he had completed his schooling in 1985. The tacit basis for this inference was, presumably, that the applicant would have brought evidence of his ultimate educational achievement to assist in starting life in a new country. The applicant asserted that the certificate was not his final certificate, but only a certificate for the first of three secondary years. The certificate appears to say something like that. He asserted that he had finished school in 1988, but that he had failed and not obtained a certificate. At pages 10 and 11, he was cross-examined about his age in such a way as to suggest that it was considered unlikely that he would still have been at school at age twenty-one or twenty-two. It is true that the Tribunal did not expressly state that it rejected his evidence concerning his education, but it had clearly indicated that his account was doubted. I consider that no more was required.
The second point is associated with the first and concerns the applicant’s initial statement that he had gone to Year 10 at school. At p 23 of the transcript, in the context of a discussion as to the accuracy of the record of the initial interview, with particular reference to the applicant’s statement about Year 10, the solicitor assisting the applicant observed “It doesn’t seem to me very significant”. The Tribunal said “No”. The solicitor then said “Whether its Year 10 or Year 12”. It is difficult to be sure what the Tribunal meant to communicate by the word “No”. Assuming the correctness of the sequence in the transcript, it was not endorsing the remark in connection with the reference to Years 10 and 12, unless it had anticipated the balance of the solicitor’s sentence. The Tribunal then said:-
“Well, I suppose it just goes to whether or not it was consistent with what that certificate, or at least what I thought that certificate meant in that he finished school then and had (indistinct) going on to year 12 as we understand it, to actually finishing school at some sort of year level.”
It is submitted that this indicates that the Tribunal treated the reference to Year 10 as not being very significant and of relevance only as to its consistency with the certificate. The thrust of the submission appears to be that it was not open to the Tribunal to use the statement that he had gone to Year 10 as a basis for impugning his credit, other than to the extent that the statement was inconsistent with the certificate. I can see no basis for this submission. The issue was whether or not he had told the Immigration Inspector that he had gone to Year 10 and possibly, whether or not that was correct. Its relevance was related to the question of his liability to do military service. The significance which facts may have in the overall scheme of things often cannot be finally determined until all of the material has been considered. To suggest that a preliminary observation as to relevance should be finally determinative of that question is a quite artificial approach. The applicant knew that these matters were in issue, that it was being suggested that he had said that he had gone to Year 10, that this was inconsistent with his statement that he had completed fifteen years of education (p 21 of the record), and that it was also apparently inconsistent with the certificate found in his sister’s baggage, if it were inferred that he had brought it with him as evidence of the highest level of schooling achieved by him. These matters were all relevant to the question of military service. He or his lawyer must have realized that they would be considered in isolation and in their totality. There is no reason to believe that the applicant was deprived of any opportunity to call evidence or make relevant submissions
The third criticism is that although the Tribunal ultimately concluded that the applicant had exaggerated in his account of problems experienced by him and his family in Algeria, it had given him no indication of being troubled by inconsistencies in his account of these matters at the hearing. This complaint should be considered in conjunction with the fourth criticism, that the Tribunal had indicated that the applicant had been “generally quite truthful”. In fact, there was a detailed exchange between the applicant and the Tribunal in which the Tribunal tried to clarify various aspects of his account of harassment and violence towards members of his family. The applicant suggested that some of them had been openly supportive of the FIS and that all of his family were “marked as being against the government”. At p 35 of the record the Tribunal pointed out that the applicant and his brothers had not had much trouble, although his cousin had. The applicant’s solicitor offered to identify the various members of the family who had been harassed by the police, and discussion ensued concerning this matter. At p 42 the solicitor said:-
“… The definition of a refugee also applies to persons who have actually – or who have not been persecuted but those who wish to avoid a situation entailing the risk of persecution. I think Mr Tirane’s case falls within that group of people. I don’t think you’ve put anything to Mr Tirane that would be adverse to his credibility. I think he is able to – I think he’s been quite forthright …I mean he is able to explain about all his relatives and some of the details are quite complex and he has been able to relate that back to you in his statement.”
The Tribunal member said:-
“I think Mr Tirane has been quite – or generally quite truthful in what he has said”.
The solicitor continued:-
“I don’t think he is trying to exaggerate his case. It may be – it might have been very easy for him to say that he has been arrested and tortured on numerous occasions, or that he’d received the call-up notice when he was still in Algeria and then left. Whereas he says that he received a military call-up notice a few weeks after he left and he is relying on the advice of his family …”.
The expression “quite – or generally quite truthful” is somewhat Delphic. The addition of the qualification “generally” to what would otherwise have been an assertion that he had been quite truthful clearly suggests some reservation upon the general proposition. The applicant had covered a lot of ground in his initial interview, in his statutory declaration and at the hearing. Clearly, the Tribunal was not indicating an acceptance of all of his evidence. In those circumstances, it was open to his legal adviser to inquire as to any specific areas about which the Tribunal had problems if he wished to make further submissions concerning them. In the event, he satisfied himself with making some further general observations about credibility. It can hardly be asserted that he was misled.
In the Tribunal’s reasons, attention is drawn to a number of discrepancies between the initial interview and the subsequent information provided. The Tribunal could not discharge its function properly if it ignored such discrepancies. It is interesting to note that the Tribunal dealt with discrepancies at two different stages. The first was in relation to credibility generally. The Tribunal first noted discrepancies between what the applicant had said upon arrival and his claims before the Tribunal. It seems that such discrepancies were acknowledged on behalf of the applicant because his adviser submitted that little weight should be put upon the initial interview, a submission which the Tribunal rejected. Secondly, the Tribunal concluded that the applicant had fabricated his claim as to the prospect of having to perform military service. The possibility of such a finding had been raised at the hearing. At pp 37-8 of the transcript, the Tribunal indicated that it had doubts about the applicant’s claim. His solicitor indicated that he had no submissions on that matter.
Having made the adverse finding as to credibility, the Tribunal proceeded to consider the specific grounds for his alleged fear and in particular, his claim that his family had been constantly harassed. It rejected the assertion of regular police and/or army visits to the house in recent years in search of the cousin Wahid, saying that it seemed unlikely that this would be so, given that he had gone missing years earlier. The Tribunal also rejected the applicant’s assertion that he was an FIS supporter, relying upon his statement to the Immigration Inspector. It probably matters little whether he was actually neutral or apparently neutral but secretly, a supporter. In either case, in the Tribunal’s view, his profile was such as to be unlikely to attract adverse attention. The Tribunal also pointed out that the applicant and his immediate family, with the exception of his brother-in-law, had not experienced problems with the authorities, and that it was more distant relations who had experienced such problems. This suggests that the Tribunal accepted much of the applicant’s story. It cannot be argued that he was given a misleading impression of the Tribunal’s position by the remark of which complaint is made or otherwise.
It was next complained that the Tribunal had concluded in its reasons that the applicant had done his military training, whilst at the hearing at pp 42 and 43, the Tribunal had said:-
“There is some evidence that reservists may be called up to do an extra six months, but Mr Tirane doesn’t even fall into that category of having fulfilled military service. It’s true he hasn’t even had to do basic military obligations so he wouldn’t even fall into that category of reservists.”
This, it is said, is inconsistent with the finding. The remark appears to be a comment upon the evidence made in the course of submissions. It related the evidence obtained from external sources to the applicant’s assertion that he had not done basic military training because of ill-health. It may be that the Tribunal was, for the moment, accepting the applicant’s story for the purpose of making a particular observation about the inter-relationship of the evidence. In the end, however, the real point under consideration was whether or not the applicant had a belief that he might be called up for military service. As I have already demonstrated, that issue was fairly ventilated. Clearly enough, the Tribunal doubted the applicant’s claim that he was at risk of being called up again. He had every opportunity to call evidence and make submissions on all aspects of that issue. That is the only relevant matter for present purposes.
Finally, it is said that the Tribunal did not dissent from the proposition advanced by the applicant’s solicitor that he was not exaggerating his case. This submission puts too great an obligation upon the Tribunal. Submissions may sometimes be met with agreement and sometimes less favourably, but silence can hardly be tantamount to acceptance.
Regardless of which of the Eshetu approaches is adopted, there is no basis for the criticism of the decision upon procedural grounds. I turn to the substantive issue.
Fear of Persecution
It is submitted that the Tribunal considered only whether the applicant had a personal profile as a member or supporter of the FIS which would lead to his being persecuted, ignoring the applicant’s fear that his family’s association with the FIS might lead to such persecution.
The applicant’s claim to refugee status is based upon fear of persecution for reasons of religion (Islam), membership of a particular social group (his family) or political opinion (support of the FIS). It is probably more accurate to say that his claimed fear is based upon a combination of all three. The definition of “refugee” contains both a subjective and an objective element. There must be an actual (subjective) fear which must be (objectively) well-founded. It is notoriously difficult to ascertain the subjective state of a person’s mind . There will often be little or no evidence of it other than the person’s statements and behaviour. In the present case the only independent evidence, apart from the conditions in Algeria, is the fact that he has left his country with members of his family and has a clear desire not to return. Conditions in Algeria, by themselves, would not justify a finding that he is a refugee. In cases of this kind, one must often consider assertions of a history of harassment which, if accepted, will demonstrate a good basis for fear and will therefore help to prove that there is such fear. The problem lies in deciding whether to accept the history of harassment.
The matter which appears to have weighed most heavily with the Tribunal was the fact that the applicant had, himself, only experienced real difficulty in 1992 when he was held for about forty-five minutes. Although, on his version, there were later visits to his home, they were all attributable to searches for his cousin. The applicant suggested that towards the end, there was some suggestion that if the authorities could not find the cousin they would take him, but the Tribunal was unwilling to accept that there had been harassment to the degree claimed, pointing out the cousin had gone into hiding in 1992 and had not been heard of since. It inferred that it was unlikely that the authorities would persist for so long in seeking him at the family home in the face of continuing failure. The Tribunal was also influenced by the fact that the applicant had been allowed to leave the country on three occasions and to return twice without difficulty. On the third occasion he chose not to return. The Tribunal inferred from these matters that the authorities had no particular interest in him. This appears to be a reasonable inference.
It cannot be said that the Tribunal overlooked the matters associated with the applicant’s family. This is the very point which the Tribunal addressed at the end of its reasons when it recorded its satisfaction, “that the applicant’s profile and that of his family is not one which would bring him to the adverse interest of the authorities”. The point made on numerous occasions was that the applicant and his own immediate family had not been subjected to substantial harassment over the years, except in the case of one brother-in-law. Such trouble as they had experienced was attributable to occasional police searches for more distant relatives. This distinction was reasonably open on the evidence. The Tribunal’s conclusion was that even if the applicant’s account of harassment of members of the extended family were true, nonetheless his immediate family had not been harassed and neither had he. Any fear of persecution was not justified by his experience since 1992. The applicant’s criticism of the decision cannot be maintained.
These being the only arguments advanced at the hearing, I dismiss the application and order the applicant to pay the respondent’s costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Associate:
Dated: 10 March 1999
Counsel for the Applicant: Mr G Kennett Solicitor for the Applicant: Legal Aid Counsel for the Respondent: Mr G T Johnson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 February 1999 Date of Judgment: 10 March 1999
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