Vwen v Minister for Immigration - [2005] FMCA 1062

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWEN v MINISTER FOR IMMIGRATION

[2005] FMCA 1062

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

Migration Act 1958 (Cth)

Das v The MinisterforImmigration [2004] FCA 489
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Muin v Refugee Review Tribunal (2002) 190 ALR 601
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003) FCA 781
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Saha v The Minister [2001] FCA 520
SZAGF v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 317
VBAO v The Minister [2004] FMCA 268
Waid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220
Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1249

Applicant:

VWEN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 519 of 2004

Judgment of:

Riethmuller FM

Hearing date:

6 June 2005

Date of Last Submission:

6 June 2005

Delivered at:

Melbourne

Delivered on:

2 August 2005

REPRESENTATION

Counsel for the Applicant:

Ms Karapanagiotidis

Solicitors for the Applicant:

Pro Bono

Counsel for the Respondent:

Mr Knowles

Solicitors for the Respondent:

Clayton Utz

ORDERS

The applicant’s application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG519 of 2004

VWEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The Applicant is a citizen of Ethiopia and was formerly resident in Ethiopia. He arrived in Australia on 3 May 2003. On 28 May 2003 the Applicant lodged an application for a Protection Visa.
On 10 October 2003 the Applicant's application for a Protection Visa was refused by a Delegate of the Minister. The Applicant applied for a review of that decision on 16 October 2003.
On 27 February 2004, the Refugee Review Tribunal (‘the Tribunal’) affirmed the Delegate's decision not to grant the Applicant a Protection Visa.

Background

The Applicant and his family were members of the Tigran People's Liberation Front (TPLF). They fought during the civil war in Ethiopia in the 1980s. The Applicant's father and two brothers died during this time.
The TPLF took power in 1991. At this time the Applicant's sister began working for the government but during the subsequent breakdown told the government that she had left the party. In 1991, the Applicant joined the TPLF and was a member of a music band. The Applicant toured the country singing in Amharic and playing in the band. The Applicant also toured overseas. He became a well known singer in Ethiopia and was a member of the band for some 10 years.
The TPLF had split into two factions and the Applicant was identified with one of those factions. In 2000, the Applicant says that the Ethiopian authorities had began to harass him and his family as a result of their support for the action of the TPLF that they were involved with. Up to the time that he left the band the Applicant had sung songs that were critical of the government, and believed that he was being watched and in danger. He says that during this time he was forbidden having involvement in overseas musical tours, ordered to stay in an office and not conform, and on one occasion, locked in a practise room for some hours after he returned from a tour to the Sudan.
In 2002, the Applicant left the Tigray culture band (the musical band of the TPLF) and continued to perform on his own. He was invited to join a new band (the Ethiopian Eagles). He says that he participated in this band for over a year performing around Ethiopia and singing songs about national issues such as corruption, food shortages and the HIV Aids problems.
The Applicant claimed that one night after a performance, a fight broke out and the police detained him accusing him of starting the fight, he says that a gun was held to his neck. He said that on another occasion when he was returning home from a performance, he was attacked by a group of men and stabbed but not robbed. He said that the attack was politically motivated. The harassment he claimed became worse after the he joined the Ethiopian Eagles.
The Applicant then had an opportunity to come to Australia to perform. With the assistance of his cousins he says he was able to obtain an Exit Visa and arrived in Australia on an Entertainment Visa. The band played in Melbourne on two occasions and then once in Perth. The Applicant then lodged an application for a Protection Visa.
The Tribunal did not accept that the Applicant faced a real chance of persecution for any Convention reason if he were to return to Ethiopia in the reasonably foreseeable future.
The Tribunal concluded that the deaths of his brother and father during the civil war were not relevant to his current claims as the regime that inflicted those losses no longer existed. The Tribunal accepted that he could be identified as coming from a political family associated with the TPLF and could be of interest to the Ethiopian People's Revolutionary Democratic Front (EPRDF) which is currently in government.
However, the Tribunal concluded that the measures taken against the Applicant did not involve a significant physical harassment or ill treatment to the degree necessary to establish persecution within the meaning of s.91R of the Migration Act. The Tribunal concluded that the Applicant had found the measures taken against him to be tolerable as he had remained in the TPLF band for around one year after the two TPLF factions split.
The Tribunal concluded that had the Applicant been of significant interest to the government more direct means of intimidating the Applicant would have been taken and on his evidence at the hearing the band, the Ethiopian Eagles, had no trouble whilst he was playing with them because he received warnings about his solo performances. The Tribunal concluded that the Applicant did not have significant difficulties for over a year before he came to Australia.
Significant to the Tribunal was the fact that the Applicant was able to renew his passport without difficulty in December 2002, which the Tribunal found would not have been likely had he been of adverse interest to the authorities.
The Tribunal also concluded, based on country information, that obtaining an Exit Visa is more straightforward than renewing a passport although the Applicant's evidence was that it was more difficult to obtain an Exit Visa and that he needed the assistance of his cousin to do so. The Tribunal did not accept that his cousin had obtained the Exit Visa for him illegally nor that his cousin was arrested or detained as a result of this.

The first ground

The Applicant's first ground for judicial review was based upon an argument that the Tribunal had placed considerable weight on the Applicant's ability to extend his passport in December 2002 which appeared unlikely in light of country information available to the Tribunal.
It was said that failure of the Tribunal to put the country information to the Applicant to allow him to comment upon it amounted to procedural unfairness which resulted in jurisdictional error.
The Applicant relied upon the reasons of McHugh J in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 631
Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power. This does not mean that the source and nature of all material that comes before the decision-maker must be disclosed. But “in the ordinary case...an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”. What is required to discharge this duty depends on the circumstances of the particular case.
The Applicant also relied upon the Judgment of Hill J in SZAGF v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 317:
30.Here there is no suggestion that the Applicant was aware of the relevant country reports. Furthermore, whilst there is certainly an interest in not burdening administrative decision makers to the point that they must give to an Applicant any conceivable background fact or piece of information upon which they rely, there is also a more significant interest in affording persons, where their interests, and often their lives are significantly affected, to have a full opportunity to answer the case that is against them.
In addition, the Applicant argued that the failure to disclose the information to the Applicant constituted a breach of s.424A(1) of the Migration Act. Section 424A of the Act provides as follows:
(1)Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) 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; or
(b) that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.
In Waid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220, French J concluded that the failure to provide country information to an Applicant independent of any breach of the provisions of s 424A did not found a ground of review on the basis of a denial of natural justice. His Honour said:
49. It was submitted for the applicant that the Tribunal specifically relied upon country information concerning the practice of religion in Vietnam which had not previously been referred to the applicant. So it was said the applicant was given no opportunity to respond to that information.
50. It was conceded for the applicant that the material which he had provided and that which was relied upon by the Tribunal "were substantially to the same effect". Its substance was that official churches are tolerated and controlled while unofficial churches are subject to persecution. The Tribunal, it was said, had reached a different conclusion by referring to passages in its country material out of context. It failed to distinguish between material which referred to official churches and that which referred to unofficial churches. Had the applicant been given the opportunity to comment, it is said that he could have referred the Tribunal to passages which put those quoted by it in their correct context.
51. Counsel for the Minister relied upon s 422B. Section 424A he submitted deals with the provision to applicants of adverse information. Section 424A(3) has the effect that the Tribunal is not obliged to give an applicant particulars of adverse information unless it is about the applicant or another person. It is not sufficient that it is about a class of person of which the applicant may be a member. By virtue of s 422B this was said to exhaust the requirements of natural justice in relation to the provision of potentially adverse information which might be relied upon by the Tribunal.
This decision has been followed by NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 (with respect to s 357A) and Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1249 at paragraphs 20 to 24 per Healy J (with respect to s 51A) (both equivalent sections with respect to other parts of the Act).
It therefore remains to determine whether or not the exceptions set out in s 424A(3) of the Act applies in this case.
It appears clear that the country information in this case was not about a particular person but about a class of persons, Ethiopians applying for passports or exit permits. For example in VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186, Kenny J, said:
49 Is information about the law of another country concerning the entry rights of non-nationals who hold permits properly described as information "just about" a class of persons of which, relevantly, one of the appellants was a member? It seems to me that it is.
50 In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within par 424A(3)(a) of the Act: see, e.g., Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 per O'Loughlin J; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 per RD Nicholson J; Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 per Mansfield J; and "W104/00A" v Minister for Immigration & Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 ("VEAJ of 2002"), at [36]-[38], and [43] per Gray J.
In NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262, Ryan and Finkelstein JJ, said, at paragraphs 30 to 31:
30. Section 424A(3)(a) has two limbs, both of which must be satisfied in order for the information to fall within the exemption. Those limbs are: (i) information "that is not specifically about the applicant or another person and" (ii) information that "is just about a class of persons of which the applicant or other person is a member" (emphasis added). According to the views of the majority in VHAJ it is mistaken to regard all information before the Tribunal as falling into one or other of two mutually exclusive categories of information "specifically about the applicant or another person" or, information "just about a class of persons of which the applicant or other person is a member". The words "just about" have been included as words of limitation. Information which is "just about a class of persons" is information possessing only one characteristic, in the sense of being information solely about that "class of persons" and not going to another issue before the Tribunal. The Tribunal, for example, frequently has regard to reports produced by the Commonwealth Department of Foreign Affairs and Trade or the United States State Department on the level of protection of civil liberties afforded to various ethnic groups in a particular country. Such information usually has the single character of information solely about a class of persons.
31. However, information may come before the Tribunal which, while perhaps relating to a class of persons, may also go to another issue which is relevant to the reasoning process of the Tribunal. It is conceivable that information will not necessarily fit into either of the two categories contemplated by s 424A(3)(a). If the information is not specifically about the applicant or another person and is also not "just about" a class of persons of which the applicant is a member, then if the information would be the reason, or part of the reason, for affirming the decision that is under review, it ought to be disclosed.
I accept the respondent's submissions that the information falls within the exception set out in s.424A(3).
In any event it appears that the respondent is correct in its submission that on the material currently before me there is evidence that the Tribunal member appears to have put the substance of the issue to the Applicant by indicating to the Applicant that the ability to renew his passport indicated that the authorities were willing to extend the passport (see paragraph 4 of the affidavit of the Applicant dated 7 June 2004).
No transcript of the hearing has been provided to clarify exactly what was put to the Applicant.
At pages 203 and 204 of the court book the reasons for the decision also contain the following comments:
The Tribunal noted that the applicant’s passport had been extended in December 2002, so it would seem that the authorities were not so concerned about the applicant’s political views that they were not prepared to extend his passport. The applicant responded that the TPLF band needed him to play keyboard in the Sudan. Generally they did not extend a person’s passport if they were though to have adverse views. The applicant said later in the Hearing that obtaining an extension of a passport was not difficult but getting an exit visa was more difficult unless one had help.
The Tribunal also noted that the Ethiopian Consulate in Melbourne had sent a letter to the Australian High Commission in Nairobi on 5 December 2002 in support of the applicant and other members in Eagles band. This would seem to suggest that the applicant and the other members of the band were regarded favourably by the authorities.
For these reason I find that this ground of review failed.

Second ground

The Applicant's second ground is that the Tribunal failed to properly apply the provisions of s.91R of the Migration Act in the context of the Applicant's case.
Section 91R is in the following terms:
(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.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

The Tribunal described the operation of s.91R at pages 3 to 4 of its decision in the following terms:
Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or (countries) of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.
Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
The Applicant said that he suffered serious harm in the forms of actual violence and persistent and continuous threats. In argument the Applicant's counsel developed the proposition that the Applicant claimed the following threats:
46.(a) After the split of the TPLF and before the applicant left the band, he received threats – “the threats were always implied, and never explicit. They were trying to force me to follow their orders or suffer the consequences [CB 40.4]” The applicant further claimed at [CB 42.1]:
I left the party in 2002 after receiving many threats to my safety. My cousin, Tewodros Abay, who was working in the immigration and security department warned me that I was under surveillance and in danger.
(b)After leaving the party, the applicant claimed to have the security police regularly threaten him. He stated “they kept telling me, remember you are the only sone your mother has left, don’t’ you want to remain alive [CB 42.7].”
(c)After joining the Ethiopian Eagles, the applicant claimed that “the harassment and threats did become worse…as I was seen as even stronger critic and enemy of the government [CB 73.1].
Counsel for the Applicant carefully argued that the Tribunal accepted the substance of the Applicant's claims but impermissibly confined the definition of serious harm under the section on the basis that he had not been jailed. In particular the Applicant relied upon comments in VBAO v The Minister [2004] FMCA 268 that:
17…the issue is not whether such threats were carried out but whether the threats and the resultant fear they created in the mind of the applicant were sufficient to constitute persecution.
The question of what amounts to persecution is a question of fact for the Tribunal to determine. This has been reiterated in a number of cases. For example, in Saha v The Minister [2001] FCA 520 Beaumont J, rejected the submission that being the subject of an attack involving injury and being shot at did not necessarily require a finding of persecution by the Tribunal. Similarly, in Das v The MinisterforImmigration [2004] FCA 489, Sundberg J found no error in the case where the Tribunal had concluded that interrogation involving an Applicant's loss of a finger was not persecution in the context of the case.
Sundberg J, stated:
24. In the present case, the Tribunal correctly instructed itself as to the meaning of persecution. While undoubtedly a brutal assault by the IPKF captain, with unfortunate consequences, the Tribunal’s conclusion that it did not amount to persecution was open to it. The applicant’s attempt to have the Court second guess the Tribunal on a matter of fact has no prospect of success.
In the circumstances, I find that this ground is not made out. In any event, as pointed out by counsel for the respondent, the Applicant's argument did not take into account the findings of the Tribunal that such events had ceased over a year before he left Ethiopia, such finding being a foundation for the conclusion that the Applicant did not face a real chance of persecution if he returned to Ethiopia in the foreseeable future.

Third ground

In support of this ground, the Applicant argued that the Tribunal had failed to consider whether he faced "a real chance" of persecution. It was argued that the Tribunal had failed to apply the test as explained in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, in that the Tribunal asked whether the criticisms of the Applicant and warnings to him in Ethiopia meant that he would necessarily face harm. The Applicant relied upon a passage from Guo's case as follows:
An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a “well-founded” fear. This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In Chan, Mason CJ said:
If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50% chance of persecution occurring.
In the same case, McHugh J said that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10% chance of persecution may constitute a well-founded fear of persecution.
In its reasons the Tribunal identifies the test at page 4, as set out in paragraph [34] above. The Tribunal set out its conclusions at pages 36 to 37 of the decision as follows:
The Tribunal has found that the applicant did not suffer persecution form the authorities in Ethiopia on account of his political views expressed through his lyrics or because of the suspicion he was associated with a political faction that had fallen out with the rest of the TPLF. Any harassment he suffered while with the Tigray Culture Band stopped after he left the band and any threats made after that were not acted upon. For over a year before he left Ethiopia he claimed he was able to sing lyrics which were critical of the government and he did not claim that any action was taken against him. As the Tribunal finds that the applicant left the country legally to visit Australia with the support of the Ethiopian Consulate and as the applicant has said that he has not sung any lyrics critical of the Ethiopian Government while he has been in Australia, the Tribunal sees no reason why the applicant could not return to Ethiopia and resume singing the kinds of songs he sang before he left Ethiopia, whether as an individual or as a member of a band. For these reasons, the Tribunal finds that there is not a real chance that the applicant would be persecuted if he were to return to Ethiopia and resume his profession as a musician.
Taking into account all of the applicant’s claims, individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of persecution on grounds of his political opinion, or for any other Convention ground, and finds therefore that he does not have a well-founded fear of persecution for these reasons if he were to return to Ethiopia in the reasonably foreseeable future.
Counsel for the Applicant drew support from a passage at page 34, a decision where the Tribunal said:
The applicant claimed also that he continued to get warnings from people about the political content of his songs. The applicant claimed that he had been told by his cousin in the department of Immigration and Security that his cousin had heard criticism of him because of the political content of his songs. The Tribunal accepts this claim but does not conclude that such criticism necessarily meant the applicant would have punitive measures taken against him by the government.
I do not read this passage as conveying that the Tribunal took the approach that they would have to conclude that the criticism would necessarily mean that the Applicant would have punitive measures taken against him, but rather that the prospect of punitive measures did not follow as a logical certainty from the threats. This appears clear when the passage is read in context.
I also bear in mind the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that the Court should not be concerned with mere looseness in the language and nor with unhappy phrasing. A fair reading of the conclusions of the Tribunal do not appear to me to demonstrate an error of the nature described by the Applicant. In the circumstances I find that there is no merit in this ground for review.

Ground four

The final ground relied upon by the Applicant was that the Tribunal misconstrued his claims and failed to consider them. The Applicant argued that the Tribunal had found that the Applicant had not left Ethiopia illegally and that the Applicant did not claim to have had an illegal departure from Ethiopia.
It was argued that the Applicant's claim was that his cousin had assisted him to obtain an Exit Visa and that without such assistance he would have had difficulty obtaining the Exit Visa because of his profile. It was argued that the Tribunal had impermissibly limited its considerations to a narrow question of whether or not the Applicant had departed from the country illegally.
It was argued by the Minister that the reference by the Tribunal to the Applicant not departing Ethiopia illegally intended to convey that the Tribunal did not accept that he obtained an Exit Visa through unofficial channels, either through corrupt means or otherwise contrary to the applicable rules in Ethiopia. It is appropriate to set out the whole of the relevant passage of the Tribunal's decision, which appears at page 35, in the following terms:
The applicant also claimed that he was able to get an exit visa to leave Ethiopia though the assistance of his cousin in the Immigration and Security Department – the implication being that if he tried to obtain one through normal processes he would not have succeeded. The Tribunal does not accept that the applicant would have obtained his exit visa in this manner because he did not need to do so. The country information cited above on obtaining a passport extension also states that an exit visa is an easier matter because the person would have already gone through the security checks when the passport was extended. To obtain an exit visa the primary requirement is to hold a visa to enable entry to the country to which the person is travelling.
Because the applicant did not need to use his cousin in the Immigration Department to obtain an exit visa illegally, the Tribunal does not accept that he did so and does not accept the applicant’s claims in regard to his cousin’s arrest and disappearance and the dismissal of the Head of Immigration.
The use of the term "illegal" is putting the matter a little more strongly than was necessarily required, however it did not inaccurately describe the case of the Applicant. The Applicant's case was that he would not have obtained an Exit Visa through the normal processes and required the assistance of his cousin to do so.
The tenure of the Applicant's case was that he obtained an Exit Visa in circumstances where he would not have otherwise have been entitled to one. I am not satisfied that the reasons disclosed that the Tribunal misunderstood the nature of this part of the Applicant's case and dealt with it inappropriately.
In this respect I find that the Applicant has not established a ground for review.
In the Applicant's written submissions the Applicant makes the following submission, paragraph 70:
The Tribunal did not consider these matters, it did not consider whether the applicant had a particular profile, whether he was sell known or whether his mother and sister could have suffered harm because of his activities, political opinions or public profile. Instead, the Tribunal only considered the harm the applicant claimed befell his family by reference to whether he had escaped “illegally”. It failed to place the claim in context and failed to consider his claims cumulatively.
This is appropriately answered by the references in paragraph 5.34 of the written submissions of the respondent:
5.34 At paragraph 70 of his contentions, the applicant claims that the Tribunal “did not consider whether the applicant had a particular profile”. This is not correct. The Tribunal found that the applicant did not have a political profile which attracted adverse attention from the Ethiopian authorities. In doing so, it made the following findings:
(a) the applicant was not expelled from the party, “which might have been the case if the party believed he was opposed to them” [CB 206.2];
(b) “the campaign [against leading members of the TPLF faction that fell out of favour with the government] does not appear to have been extensive or to have resulted in the persecution of people with the profile of the applicant” [CB 206.6];
(c) “if the regime had seen the applicant as a threat it could have dealt severely with him but the claims made in regard to his time with the Tigray Culture Band do not fall within that category” [CB 207.2];
(d) “the Ethiopian Government would resort to more direct means of intimidating the applicant if it believed it had a need to do so” [CB 207.7];
(e) the applicant “did not have significant difficulties for over a year before he left for Australia, despite singing songs that were critical of the government” [CB 208.7];
(f)the applicant was able to depart Ethiopia legally and without difficulty [CB 208.7-209.4];
(g)during his visit to Australia, the applicant had not performed political songs critical of the government [CB 210.3-4].
In the circumstances I am not satisfied that this ground for review is made out.

Ground five

The final ground relied upon by the Applicant was that the Tribunal had failed to consider whether the Applicant had been imputed to have an adverse political profile. In this case it appears that the Applicant had a clear political opinion and profile as a singer and song writer and that it was not a real issue as to whether or not he would be imputed to have a particular political opinion: he held the opinions that were known and he portrayed them in his songs. I do not find that this is a ground for judicial review in this case.
What followed in the Applicant's written outline goes to a number of arguments with respect to reasons why the Tribunal ought to have made different findings on the facts. These are not matters that can properly be the subject of judicial review.
The Tribunal gave a lengthy and detailed written decision running to 37 pages. It is not necessary that the Tribunal give a line by line refutation of each piece of evidence that may be considered contrary to, or not entirely consistent with material facts found by the Tribunal. McHugh J, in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 said, at paragraphs 64 to 66:
64.There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the tribunal to refer to evidence contrary to findings of the tribunal. However, the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs, Addo v Minister for Immigration and Multicultural Affairs and Sivaram v Minister for Immigration and Multicultural Affairs. In Addo, the court said:
Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
…
It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.
65. In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective 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.
66.In this case, the tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1). In this case I do not find that this issue demonstrates a judicially reviewable error on the part of the Tribunal.

I therefore find that this ground is not made out.
As I have found none of the Applicant's grounds made out, I must therefore refuse the current application. The outcome will be a refusal.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

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