VWBV v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1500

FEDERAL COURT OF AUSTRALIA

VWBV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1500

VWBV v Minister for Immigration [2005] FMCA 118 cited
Kalala v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 212 cited
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited
Rajalingam v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 220 cited

VWBV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 198 OF 2005

SUNDBERG J
MELBOURNE
26 OCTOBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 198 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

VWBV
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

SUNDBERG J

DATE OF ORDER:

26 OCTOBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as a respondent.

2.The appeal be dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 198 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

VWBV
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SUNDBERG J
DATE:	26 OCTOBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. The appellant appeals from a decision of the Federal Magistrates’ Court. Connolly FM dismissed his application to review the decision of the Refugee Review Tribunal to affirm the decision of a delegate of the Minister to refuse to grant him a protection visa. (Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), Black CJ directed that the appeal be heard by a single judge of this Court.)

2. The bases of the appellant’s claim for a protection visa, his evidence before the Tribunal and the Tribunal’s findings are contained in the Tribunal’s reasons.  These are also summarised in Connolly FM’s reasons: VWBV v Minister for Immigration [2005] FMCA 118.

   GROUNDS OF APPEAL

3. There are two grounds of appeal.  First, that the Tribunal constructively failed to exercise the jurisdiction conferred upon it.  Specifically, that the Tribunal rejected much of the appellant’s evidence as to his involvement in the Kurdish Democratic Party of Iran (the KDPI) and his treatment by Iranian authorities in the absence of any probative material or rational basis in support of that rejection.  Secondly, that the Tribunal misunderstood its task in assessing, in the light of the appellant’s evidence, the risk that he would be persecuted if he were to return to Iran.  Both grounds of appeal were unsuccessfully advanced before Connolly FM.  I will deal with them in reverse order.

   SECOND GROUND

4. For the purposes of this ground of appeal, the following passage of the Tribunal’s reasons is impugned:

   “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 [appellant’s] 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 not 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.”

   The appellant contends that each of the first, second and fourth sentences of that passage are erroneous:

   (a)The first sentence is erroneous because Kalala v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 212 is not about “the standard for assessing the credibility of claims of past persecution”.

   (b)The second sentence is erroneous because it is inconsistent with what is said in Kalala, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Rajalingam v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 220 in that it assumes that the Tribunal (i) must find whether “claimed past events occurred” and (ii) is bound by such a finding when it goes on to consider the likelihood that the applicant for protection will be persecuted if he or she must return to his or her home country.

   (c)The fourth sentence is erroneous because Kalala is not about “disposing of claims”.  Rather, Kalala makes clear that the Tribunal, unlike a court in an ordinary civil proceeding, must, when considering the likelihood that the applicant for protection will be persecuted if he or she must return to his or her home country, allow for an appropriate degree of probability that claimed past events occurred notwithstanding doubts as to whether they had indeed occurred.

   The appellant contends that these three errors (the contributory errors) led to a situation where the Tribunal (i) expressed in definitive terms its finding that certain past events claimed by the appellant did not occur only because it regarded itself as being required to do so and (ii) thus precluded itself from applying the “what if I’m wrong?” test (the proximate error).  (In my view, the contributory errors described at (b) and (c) are parts of the same error: the latter flows from the former.  As to the words of the sentences to which they are addressed, there is little relevant difference between a statement that the Tribunal “must be satisfied” that a claimed past event has occurred and an implication that the Tribunal must “dispose” of a claim that a past event has occurred.)

5. Much turns on the degree of confidence with which the Tribunal stated its findings in relation to claimed past events.  Counsel for the appellant conceded that he could not “submit … that this is a case where doubt [as to those findings] emerges from the expression of the reasons fairly read” or “contend that the findings are expressed in language redolent of doubt”.  In Rajalingam, Sackville J (with whom North J agreed) said at [67]:

   “In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to determined by reference to the RRT’s own reasons.  If a fair reading of the reasons as a whole shows that the RRT itself had ‘no real doubt’ (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.  Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued.  A ‘fair reading’ of the reasons incorporates the principle that the RRT’s reasons should receive a ‘beneficial construction’ and should not be ‘construed minutely and finely with an eye keenly attuned to the perception of error’: [Minister for Immigration and Ethnic Affairs v] Wu Shan Liang [(1996) 185 CLR 259] at 271-272”.

   In Guo, the majority of the High Court said at 576:

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

   In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct.  That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant.  Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational.  Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”

6. I do not agree with the appellant that the contributory errors were errors as such or that they led to the proximate error.  Before I explain why I do not agree, I should set out the entirety of the paragraph of the Tribunal’s reasons quoted at [4]:

   “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 [appellant’s] 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 not 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 an 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 (ie they may happen or may have happened).  Where claims of past persecution are not accepted, there does need to be evidence of some such 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: ie 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.”

7. The impugned sentences of the Tribunal’s reasons do not disclose the contributory errors for which he contends.  They are in response to an erroneous submission to the Tribunal by the appellant’s then adviser that Kalala “confirmed that the legal threshold for a real and substantial basis being established in relation to past events is low: it includes circumstances where all that can be said is that they may have happened, even if it is unlikely they did.”  That circumstance, the need to afford the Tribunal’s reasons a “beneficial construction” and the context provided by the remainder of the impugned paragraph of the Tribunal’s reasons leads to a conclusion that the Tribunal did not fall into the contributory errors for which the appellant contends.  Rather, by the impugned sentences, the Tribunal sought – infelicitously – to make the point that the occurrence of a claimed past event must be demonstrated to the Tribunal’s satisfaction.

8. Therefore, the Tribunal did not commit part (i) of the proximate error. The effect of the concession described at [5] is that, apart from the impugned sentences of the Tribunal’s reasons, there is no basis for saying that the Tribunal expressed in definitive terms its finding that certain past events claimed by the appellant did not occur only because it regarded itself as being required to do so. Therefore, the Tribunal did not commit part (ii) of the proximate error: see [5].

   FIRST GROUND

9. In its reasons, the Tribunal said that “[t]he question is whether the [appellant] has [a] pro-Kurdish profile” and gave four reasons why it did not accept that the appellant had that profile.

10. First, the Tribunal found that the appellant was not imputed with that profile “due to his relationship with his sister or any other KDPI members”.  This finding is not impugned.

11. Secondly, the Tribunal did not accept that the appellant was

    “arrested, interrogated, jailed for a year and tortured … for driving a KDPI activist.  [His] reticence on the matter of what had happened to Rahim [ie the KDPI activist], and his apparent failure to inquire into the fate of Rahim, was a very strong indicator 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 really had 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.  [He] would have responded more readily to questions from the Tribunal about what had happened to Rahim even if he did not know what had happened to Rahim.”

    This finding is impugned (the first impugned finding).

12. Thirdly, the Tribunal did not accept that the appellant was, under cover of his occupation as a long-distance truck driver,

    “delivering supplies to or gathering intelligence for the KDPI.  The Tribunal was not persuaded that [he] 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, ie that the KDPI actually does obtain information through the circuitous route claimed by the [appellant], which struck the Tribunal as unlikely.

    Although the [appellant’s] reasons for taking his (or his employer’s) truck to a place near Saghez, giving him the opportunitiy to detour, were clear up to 1991 (he was travelling to Europe and back) he did not explain to the Tribunal what exactly was the work context for taking the truck to that region after 1991.  Furthermore, neither the [appellant] nor Dr White explained why supplies needed to be obtained from as far away as Tehran, when it would make more sense that they would be obtained locally, and that a supplier would obtain them from regular commercial sources (not needing a KDPI-sympathetic driver) further away if needed.  There is no evidence that the goods he was bringing were embargoed for that region, so there was no need for them to be brought to the region secretly and therefore no need for the supply to be tagged as a KDPI operation right back at the source in Tehran.  The [appellant] himself had no information that the supplies were going to the KDPI other than making the claim that he delivered them to a KDPI contact and sourced them from a KDPI contact in Tehran.  He said himself they could have been going to the local poor.  (Indeed, the Tribunal would have little difficulty accepting, if the claim had been made, that when the [appellant] visited from Tehran – either with the truck or by other means – he brought food and medicine for relatives, but there is no evidence that this would lead to persecution.

    It follows that the Tribunal does not accept that the [appellant] fled Iran after the arrest of the KDPI contact to whom he was to deliver supplies in December 2000.  Again, the [appellant’s] inability to say what had happened to this person after he was arrested, when that would be vitally important to the [appellant’s] own anticipated fate if he stayed in or returned to Iran, reinforced the Tribunal’s conclusion that this was not a genuine experience.”

    This passage encompasses contains two findings.  First, that the appellant did not deliver supplies to or gather intelligence for the KDPI (the second impugned finding).  Secondly, that the appellant did not flee Iran after the arrest of a KDPI contact to whom he was to deliver supplies.  The basis for this finding is essentially the same as that for the first impugned finding.  Therefore, I will consider this finding together with the first impugned finding.

13. Fourthly, the Tribunal said “the country information … about Iran’s exit procedures reinforces the foregoing findings.”  This finding is not impugned.

14. The Tribunal said that it followed

    “from finding that the [appellant] is not of political interest to the Iranian authorities, that “the Tribunal does not accept that the authorities have come to the [appellant’s] house, that his family was harassed, that his wife was taken away and interrogated either on one or more occasions, that she was threatened, beaten or kicked or her son slapped.”

    This finding (the third impugned finding) is impugned in so far as the Tribunal said it followed from the first and second impugned findings.

15. The Tribunal went on to say that

    “The beating of the [appellant’s] son at school and the fact that the [appellant] has been asked to attend the school are of little weight as evidence in support of the [appellant’s] claims, since there is no direct information (only speculation) about the reason for the beating or that the request to attend the school was motivated by anything other than the stated reason: to discuss the son’s academic progress.  Attributing Convention-related motives to these matters would not be persuasive without acceptance of the [appellant’s] claim to have fled political persecution.  Similarly the fact that the [appellant] sought expedited review of his case, due to anxieties about his family, cannot be given useful weight as evidence that he fears persecution.

    The Tribunal considered carefully the letters written by the KDPI and the person who said they were a Komala refugee in the UK.  The Tribunal was unable to give these letters sufficient weight to counteract the concerns underpinning the foregoing findings.  Neither author was a direct witness to the events claimed by the [appellant] that led him to flee Iran, and the letters (especially that of the KDPI) were in very general terms.  The Tribunal reaches this conclusion notwithstanding the [appellant’s] assertion that letters of general support from the KDPI are difficult to obtain.  The Tribunal does not accept that the [appellant] has a record as a KDPI activist.”

    (The emphasis is mine.)  Each paragraph contains an impugned finding (the fourth and fifth impugned findings respectively).  They are impugned in so far as the Tribunal, in the emphasised parts, said they flowed from the first and second impugned findings.

    The first impugned finding

16. The appellant contended that the first impugned finding was made in the absence of any probative material or rational basis in support of it.  That contention must be rejected.  The appellant’s failures to inquire into the fates of Rahim (see [11]) or the other KDPI activist (see [12]) are not so unrelated to any factual inquiry about the claimed past events involving those persons that they are not capable of tending to prove or disprove their occurence.  Although, in my view, the probative value of those failures is not as high as the Tribunal thought it was, that assessment is undoubtedly one for the Tribunal.  Further, the attack on the first impugned finding ignores the Tribunal’s reliance on the appellant’s demeanour – his “reticence on the matter of what had happened to Rahim” in that he “would have responded more readily to questions from the Tribunal about what had happened to Rahim even if he did not know what had happened to Rahim” – in concluding that it did not believe the appellant’s story. See [11].

    The second impugned finding

17. The appellant contended that the second impugned finding was also made in the absence of any probative material or rational basis in support of it.  Specifically, that the Tribunal’s observations that (a) the appellant was not “useful or necessary to the KDPI as a source of information”  and (b) the claim “that the KDPI actually does obtain information through the circuitous route claimed by the [appellant] … struck the Tribunal as unlikely” were, in the case of (a), beside the point and, in the case of both (a) and (b), merely speculative and counter to the “evidence the other way” in an opinion obtained from a Dr Paul White of the Centre for Peace and Conflict Studies at the University of Sydney who described himself as a “Kurdish Expert Scholar”.  That contention must also be rejected.  It is simply a means by which the appellant seeks what is effectively a re-opening of the merits of the Tribunal’s decision.  That view is reinforced by the present reference to Dr White’s opinion – which was expressed with a high level of generality and might well have been thought of by the Tribunal to be of little probative value.

    The third, fourth and fifth impugned findings

1. In light of my views as to the first and second impugned findings, I need not deal with the third, fourth and fifth impugned findings.

   CONCLUSION

2. The appeal must be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:            26 October 2005

Counsel for the Appellant:	RM Niall
Solicitor for the Appellant:	Holding Redlich
Counsel for the Respondent:	SD Hay
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 October 2005
Date of Judgment:	26 October 2005