VWBV v Minister for Immigration
[2005] FMCA 118
•25 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWBV v MINISTER FOR IMMIGRATION | [2005] FMCA 118 |
| MIGRATION – Review of Refugee Review Tribunal decision – want of logic as a review ground – ‘what if I am wrong?’ test – no reviewable error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 474
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Craig v South Australia (1995) 184 CLR 163
Kamalv Minister for Immigration & Multicultural Affairs [2002] FCA 818 (3 July 2002)
Minster for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (3 June 1999)
Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 (10 November 2004)
| Applicant: | VWBV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1143 of 2004 |
| Delivered on: | 25 February 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 31 January 2005 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Champion |
| Solicitors for the Applicant: | (Not applicable) |
| Counsel for the Respondent: | Mr Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
THAT the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1143 of 2004
| VWBV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
30 December 2003 seeking judicial review of the decision of the Refugee Review Tribunal on 12 December 2003 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection (class XA) visa.
The history
The applicant is a citizen of Iran. He came to Australia on 18 February 2001 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 16 March 2001.
On 11 December 2002, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa; the applicant applied for review of that decision by the Refugee Review Tribunal (“the Tribunal”) on 2 January 2003.
The applicant claimed he is an ethnic Kurd who was born in Iran, and is of Sunni Muslim religion. When he was a child, he moved with his parents from Saghez (in Kurdistan, Iran) to Tehran, where his father worked for the Shah’s intelligence organisation, “Savak”. At the time of the Revolution in Iran, his father was arrested and held in prison for a year, where he was bashed and tortured. The family suffered abuse because of the father’s Savak connection and because of their Kurdish ethnic background.
In 1987 the applicant became involved with the Kurdish Democratic Party (“KDP”). He claimed that he gathered military information and made deliveries to Saghez on behalf of KDP whilst working as a truck driver. Following one such occasion in 1999 when the applicant took a prominent KDP activist with him to Saghez, the applicant was questioned by authorities and imprisoned in solitary confinement for about a year. He was released from prison in September 2000 following the payment of bribes by his family and on the condition he ceased political activities and reported to the Revolutionary Court in Tehran every fortnight.
The applicant returned to truck-driving work, and occasionally his KDP activities. In December 2000, the applicant heard that his KDP contact in Saghez had been arrested. The applicant returned to Tehran, resigned from his job and moved house. He heard that the authorities had been looking for him and his wife urged him to leave the country and helped make arrangements for same.
The applicant left the country legally on his own validly-obtained passport and encountered no difficulties going through customs in Iran. He claimed that it was as a result of paying considerable bribes that he was to pass through Iranian customs so smoothly, and not because he was not of adverse interest to the Iranian authorities.
The applicant claimed that if he returned to Iran, he risked a death sentence. His wife and two sons continue to live in Iran, and he believed that they had been subjected to harassment and interrogations by the authorities by reason of his departure from Iran.
In the decision made by the Tribunal on 12 December 2003, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol); consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for the purposes of a protection visa. The Tribunal found that the applicant did not have a well-founded fear of persecution in Iran within the meaning of the Convention. Specifically, the Tribunal:
a)found that politically inactive Kurds in Iran are not persecuted, nor are Sunni Muslims;
b)found that Kurds identified as separatists or KDP activists would be at risk of persecution by Iranian authorities;
c)did not accept the applicant had been imprisoned and tortured by authorities for a year as claimed;
d)did not accept that the applicant had been engaged in intelligence collective activities and/or delivering supplies for the KDP;
e)did not accept that the applicant fled Iran as a consequence of hearing that his KDP contact in Saghez had been arrested;
f)found that it would have been very difficult for a person of adverse interest to the Iranian authorities to leave the country as claimed by the applicant or to get their passport extended as the applicant had;
g)found that the applicant is not of political interest and does not have a profile that would put him at risk of persecution by Iranian authorities;
h)did not accept that the applicant’s family in Iran had been harassed, interrogated or beaten by authorities;
i)was not satisfied that the applicant’s father’s Savak background places the applicant at risk of persecution; and
j)did not accept that the applicant, as a failed asylum-seeker, would face a real chance of serious harm upon his return to Iran.
On 30 December 2003, the applicant lodged an application in the Federal Court of Australia, being V1173 of 2003, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. By order of Finkelstein J on 24 August 2004, the matter was transferred for hearing to this Court, being MLG 1143 of 2004. On 15 March 2004 the applicant filed an amended application, and filed contentions of fact and law on 2 April 2004. Summarily, the applicant claimed that:
a)the Tribunal had constructively failed to exercise the jurisdiction conferred upon it, by rejecting the bulk of the applicant’s evidence regarding his activities for the KDP and treatment by authorities, without any rational or probative material to support such rejection;
To a material extent, the findings of the Tribunal about the applicant’s account of his past treatment were the product of the tribunal member’s own speculation and were not based on probative material or reasonable inferences drawn from probative material… Tribunal members… are not, and do not become, experts [about certain countries] as that term is properly understood. (paragraphs 18-19);
b)the Tribunal misunderstood its task in assessing the risk of future persecution to the applicant, and did not ask itself “What if I am wrong?” or whether the applicant’s fear was well-founded.
The respondent’s contentions of fact and law, which were filed on 2 June 2004, rebutted the applicant’s contentions, arguing that:
a)jurisdictional error is not concerned with the process of the Tribunal’s fact-finding even if reasons could be described as illogical or unsatisfactory, that will not of itself constitute jurisdictional error (paragraph 31);
b)the Tribunal expressly found that it had no doubt about its findings as to past events and was therefore not required to engage in any speculation as to the consequences if its findings were in fact incorrect.
The law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions & findings
The first ground for review contended by the applicant is that the decision, as contained in the four findings made by the Tribunal at pages 187 and 188 of the Casebook (“CB”), was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds. This argument was pursued albeit that Counsel for the applicant conceded that the basis of the Tribunal’s findings were that it simply did not believe the applicant. It did not accept his credibility. It in effect found the applicant’s claims to be inconsistent with the evidence which it referred to at length in its reasons. Credibility is a matter for the Tribunal par excellence (Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407).
In Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818 (3 July 2002), Mansfield J stated at [36]:
It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal. I do not think that the Tribunal's assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant. The matters to which it had regard were matters which, logically, it might have considered. The applicant's contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced. The Court is not empowered to review the Tribunal's decision on the merits. It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act. In my judgment, no error of the nature contended for has been demonstrated.
The Full Court of the Federal Court per Kiefel, Marshall and Downes JJ in VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 (10 November 2004) held:
14. The notice of appeal contained one ground only. It alleged that his Honour erred in not finding that “the decision [of the RRT] was affected by jurisdictional error because of logical flaws in the Tribunal’s process of reasoning.”
15. The appellant submitted that “want of logic” is available as a ground of review following the judgment of the High Court in Appellant S106/2002 (Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 was also determined in the same judgment).
18. We are not convinced that the analysis in NACB is erroneous: See Transurban City Link v Allan (1999) 95 FCR 553 at [26] to [31]. Accordingly we agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review. This point was confirmed by a Full Court in NATC v Minister for Immigration & Multicultural Affairs [2004] FCAFC 52, where NACB was referred to with approval at [25]. See also W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC AT [35].
The Tribunal’s findings in the four paragraphs beginning with ‘first’, ‘second’, ‘third’ and ‘fourth’ respectively, at pages 187 and 185 of the Casebook, are not based on a complete lack of evidence. They are not the equivalent of determining a matter by tossing a coin or by making a snap decision or acting on an instinct or hunch or a gut feeling (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 366-67). What the applicant is saying in this case is that an erroneous decision has been made and therefore the weight given to the factors must have been misplaced. He is seeking a review of the merits.
In the ‘first’ paragraph on page 187 CB, the Tribunal said:
First, the applicant’s sister and brother in law took refuge in Europe in the mid-80s, due to their KDPI involvement. Yet the applicant on his own claims personally suffered no serious ill-treatment by the authorities until 1999. Clearly he was not imputed with a pro-Kurdish profile due to his relationship with his sister or any other KDPI members, or his geographic background. Clearly also, the fact that he was with the peshmerga for a brief period many years ago has not come to the attention of the authorities. The fact that the applicant came and went from Iran from 1985 to 1991 without difficulties, and without seeking asylum, indicated that he did not see himself as at risk of persecution in those days.
The Tribunal has clearly set out its reasons for not accepting that the applicant had a pro-Kurdish profile.
The Tribunal further found:
Second, the Tribunal does not accept that the applicant was arrested, interrogated, jailed for a year and tortured in Bijar for driving a KDPI activist. The applicant’s reticence on the matter of what had happened to Rahim, and his apparent failure to inquire into the fate of Rahim, was a very strong indictor that the claim was fabricated. The fate of Rahim was critical to the applicant’s own situation vis a vis the Iranian authorities. If he had really been kept in gaol for a year because of Rahim, he would have heard something about Rahim on release or at least been able to say what was last known of him and by whom. The applicant would have responded more readily to questions from the Tribunal about what had happened to Rahim even it he did not know what had happened to Rahim. [CB 187]
The Tribunal has explained why it does not accept that the applicant was arrested, interrogated and jailed for a year. It based this conclusion on the way in which the applicant answered questions on the matter and what they observed to be his reticence. They concluded that this was a very strong indicator of fabrication.
In the ‘third’ paragraph, the Tribunal found that:
Third, the Tribunal does not accept that the applicant has been delivering supplies to or gathering intelligence for the KDPI. The Tribunal was not persuaded that the applicant was either useful or necessary to the KDPI as a source of information about military movements, bases and operations including checkpoints, given that locals would also have access to this information and would have means to convey it straight over the border even though they would have to do so clandestinely. Neither the speculation of the adviser nor the comments of Dr White address the Tribunal’s concerns about this claim directly, i.e. that the KDPI actually does obtain information through the circuitous route claimed by the applicant, which struck the Tribunal as unlikely. [CB 187]
The Tribunal goes on to say that it does not accept that the applicant fled Iran, etc:
Fourth, the country information cited above about Iran’s exit procedures, reinforces the foregoing findings. At the very least, it would be difficult for a wanted dissident to leave Iran via the airport on their own passports. First, they would have trouble getting a passport at all if they did not already have one, let alone one with a green exit permit stamp. It follows as a matter of common sense that they would have similar difficulties getting their passport extended. They would probably also be blacklisted, and this would in most recent cases prevent them getting past security checks at the airport. The applicant’s claim that he circumvented these problems through bribery of officials was not persuasive. At the initial application, he said that the payment of money was for obtaining an entry visa to Australia. Whether or not that is true, the fact that he said it indicated he did not pay money to exit Iran. If he had done so, he would have been able to say more about precisely how it was done even if he had left the implementation to the others. [CB 188]
The above findings were clearly open to the Tribunal on the material and it discloses no jurisdictional error. Even if the Tribunal was wrong it does not commit any error of law by making a reasoned decision on the merits. See Kenny J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) FCA 719 (3 June 1999) (“Rajalingam”) at [141] :
The occasions upon which this Court may set aside a decision by the RRT in relation to a protection visa are limited to those errors of law specified in s 476(1) of the Act. The Court has no power to inquire into the merits of the decision. In many cases, the only way to ascertain whether there has been a reviewable error of law is by reading and considering the reasons for a decision which have been written and published by the RRT under s 430 and s 431 of the Act. Those reasons are, of course, to be read fairly, bearing in mind that they are the reasons of an administrative decision-maker and that the Court must not inquire into the merits of the decision. See Wu Shan Liang at 271-272 and the authorities referred to there. As Brennan CJ, Toohey, McHugh and Gummow JJ said in Wu Shan Liang at 272, "the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon a over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. ... [A]ny court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision". See also Wu at 291 per Kirby J and Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
The second ground for review contended by the applicant is that the Tribunal did not correctly ask itself whether the applicant’s fear of persecution upon return to Iran was well-founded. The applicant in effect says that the Tribunal ought to have expressed doubt as to its findings and reasons. In Rajalingam, Kenny J at [146] and [147] said:
146 The above observations concern the sufficiency of the Tribunal's explanation for its opinion about the circumstances in which Mr Rajalingam came to leave Sri Lanka. A concern of that kind can, however, rarely form the basis for a finding of error of law. A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu (unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 13 May 1999) [1999] HCA 21 at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC). In my view, the effect of his Honour's judgment was to turn what his Honour saw as doubtful fact-finding into an error of law. What his Honour did, I think, was erroneously attribute to the RRT the doubts his Honour had about the facts the RRT had found. Once that step was taken, his Honour treated the RRT's failure to address those doubts as indicative of a failure to take them into account in reaching its ultimate decision, as the decisions in Guo and Wu Shan Liang indicated it should have done. I agree with the remarks of Katz J in Zuway (unreported, 31 December 1998) [1998] FCA 1738 that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.
147 As Katz J observed in Zuway, nothing in the joint judgments in Guo or Wu Shan Liang requires the RRT to use any particular language in expressing its satisfaction with regard to an applicant's past experience. Nothing in the joint judgments requires the Tribunal to say expressly that it entertained no real doubt as to its findings or else to provide reasons that logically compel its factual conclusions. Unless those are requirements (and they are not), a statement of reasons cannot be construed as implying that the RRT entertained a real doubt about the facts as it has found them when no such doubt is admitted. The analysis made by the judge at first instance is, it seems to me, essentially a criticism of the RRT's findings of fact, of the weight that it attributed to the different items of information before it, and of the reasoning process adopted by it in reaching it factual conclusions. For present purposes (and certainly under the present statutory regime) a criticism of that kind, no matter how sound, does not establish an error of law: cf Abebe at para 197 per Gummow and Hayne JJ and para 296 per Callinan J; Eshetu paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J; and cf para 159 per Hayne J and para 184 per Callinan J.
In the Tribunal’s findings, it is clear that it entertained no doubts as to the correctness of its findings and accordingly there was no requirement to apply the “what if I am wrong?” test.
The Tribunal at CB 189 and 190 said:
The Full Federal Court judgment in the case of Kalala does not establish a low standard for assessing the credibility of claims of past persecution, in the manner suggested by the adviser. The Tribunal must be satisfied that claimed past events occurred. In this case, the Tribunal is not satisfied that the key events occurred, and does not accept that they occurred. Kalala does tell us that disposing of claims of past persecution does not always answer the question of whether the applicant has a well-founded fear of future persecution. Past claimed events may be consistent with country information about the treatment of the applicant’s ethnic group (for example) or the applicant’s overall profile, and therefore could happen in the future even if they did not already happen to that applicant as claimed (i.e. they may happen or may have happened). Where claims of past persecution are not accepted, there does not need to be evidence of some kind for a real chance of future persecution. In this case the Tribunal has not accepted that the applicant’s ethnic or religious group is persecuted in Iran based on the country information, and has not accepted that the applicant has a particular political profile that makes him exceptional to that information: i.e. it has not accepted he is identified by the Iranian authorities as anti-regime or pro-Kurdish, and is therefore not satisfied that there is a real chance of him being persecuted.
I am satisfied on any view that the Tribunal’s finding that the applicant did not have a well-founded fear of persecution upon his return was clearly open on the material.
For all of the above reasons, the application should be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 25 February 2005
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