WAMR v Minister for Immigration
[2008] FMCA 523
•3 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAMR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 523 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Israel of Arab ethnicity claiming fear of persecution as a result of relationship with a Jewish woman – claim of societal discrimination – whether Tribunal failed to take a relevant matter into account – whether Tribunal failed to consider that discrimination may encompass serious harm – application of Migration Act 1958 (Cth) s.91R – whether Tribunal failed to take into account that the word “killing” should be read down to include “serious harm” – credibility – inconsistency – proceedings before the Tribunal are inquisitorial and not adversarial – Tribunal is not in the position of a contradictor – it is for the applicant to advance whatever evidence or argument to support a contention that the applicant has a well-founded fear of persecution for a Convention reason – failure to give adequate reasons is not a ground for jurisdictional error. |
| Migration Act 1958 (Cth) ss.91R, 424A, 430, 474 |
| Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32 referred to. Re Minister for Immigration and Multicultural affairs; Ex parte Epeabaka (2001) 75 ALJR 848; 179 ALR 296 referred to. Abebe v The Commonwealth (1999) 197 CLR 510 referred to. Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 referred to. Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] 1167 FCA referred to. Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed. Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 followed. Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105 referred to. |
| Applicant: | WAMR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 262 of 2007 |
| Judgment of: | Scarlett FM (delivered by Lucev FM) |
| Hearing date: | 26 March 2008 |
| Date of Last Submission: | 26 March 2008 |
| Delivered at: | Perth |
| Delivered on: | 3 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rynne appeared pro bono |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr Hooker |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 262 of 2007
| WAMR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of Israel, asks the Court to set aside a decision of the Refugee Review Tribunal made on 4th December 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
Background
The Applicant arrived in Australia on 28th February 2007. He applied for a Protection (Class XA) visa on 11th April 2007. He is a citizen of Israel of Arab ethnicity. The delegate of the Minister for Immigration and Citizenship summarised his claim for protection in this way:
The applicant claims to fear harm on return to Israel from his Jewish ex-girlfriend’s family members. The applicant asserts that the authorities will not protect him from this harm because he is an Arab. The applicant argues that he cannot get a good job because he has not undertaken military service. He also submits that he and his family live (in) hiding in fear due to the dangers around them. The applicant claims that if he returns to Israel that he will face harm from Jewish individuals (from whom he will be denied effective state protection) and discrimination from the Israeli authorities on the basis of his race.[1]
[1] See Court Book at 50
The Applicant claimed in his application for a protection visa that he had been shot in the head in 1997 and stabbed in 2002. He also claimed that between 2002 and 2005 he was shot at on four different occasions.
The delegate found that the harm from the ex-girlfriend’s relatives involved serious harm, being systematic and discriminatory conduct as outlined in section 91R of the Migration Act. The delegate found that the harm feared by the Applicant was because he was an Arab in a relationship with a Jewish woman.
The delegate consulted Independent Country Information, including the United States Department of State 2005 Country Report on Human Rights Practices – Israel, about the National Police in Israel, and did not accept that the Applicant was denied effective protection because he was an Arab, notwithstanding the societal discrimination suffered by Arabs in Israel.
The delegate also considered the Applicant’s complaint that he was unable to obtain a good job because he had not done military service. The delegate accepted that this placed the Applicant at a disadvantage in Israeli society and accepted that, as an Israeli Arab, the Applicant might suffer societal and legal discrimination in Israel. Again, the delegate consulted Independent Country Information.
However, the delegate did not consider that the restrictions on employment to which the Applicant was subjected constituted serious harm amounting to persecution, stating:
While the applicant’s life may be unacceptably more difficult in Israel because he is an Arab, I am not satisfied that this discriminatory attitude by Israeli institutions and society give rise to a real chance of persecution in the applicant’s case.
The delegate refused the application for a Protection (Class XA) visa on 5th June 2007.
Application for Review by the Refugee Review Tribunal
On 19th June 2007 the Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. He did not provide any further documentary evidence when he lodged his application for review.
The Tribunal wrote to the Applicant on 6th July 2007, inviting him to attend a hearing on 10th August. The hearing was to be conducted by videoconference, with the Applicant in Perth and the Tribunal Member in Melbourne. The Applicant indicated he wished to participate in the hearing and that he wanted the Tribunal to hear evidence from a person in Israel.
On 8th August 2007 the Applicant’s migration agent forwarded a 6 page typed submission to the Tribunal.[2]
[2] A copy can be found at pages 79 to 84 of the Court Book.
The hearing took place on 10th August 2007 by videoconference. The Tribunal heard evidence from the Applicant, but did not take evidence from the person in Israel. The Applicant provided a copy of his Israeli passport to the Tribunal.
After the hearing, on 16th August, the Tribunal wrote to the Applicant, asking him to provide clearer photocopies of several pages of his passport and asking for information about the identity of the person in Israel whom the from whom the Applicant wanted the Tribunal to take evidence. The Applicant provided the copies of the passport and advised that the prospective witness was his brother.
The Tribunal then wrote to the Applicant on 3rd September 2007, asking him to comment on three pieces of information. This letter was clearly intended to comply with the provisions of s.424A of the Migration Act. The Applicant’s migration agent replied to that letter and provided comments on 24th September 2007. That letter also enclosed a statement from the Applicant’s brother.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 14th November 2007 and handed that decision down on 4th December 2007. The Tribunal affirmed the decision not to grant the Applicant a Protection (class XA) visa. A copy of the Tribunal Decision Record can be found in the Court Book at pages 123 to 131.
In its decision, the Tribunal set out a summary of the Applicant’s evidence at the hearing under the heading “Claims and Evidence”. The Tribunal also referred to its two letters to the Applicant, of 16th August and 3rd September 2007, and the Applicant’s reply, which the Tribunal said was made on 25th September. The letter itself was dated 24th September and bears a date stamp 27 September 2007. The Tribunal also referred to the written statement from the Applicant’s brother.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons can be found in the Court Book at pages 129 to 131. The Tribunal found that the Applicant was a citizen of Israel, based on his Israeli passport containing an
Australian visitor visa granted in Tel Aviv, and assessed his claims against that country.
The Tribunal summed up the Applicant’s claims as:
a)a fear that he would be killed because of his relationship with a Jewish Israeli woman;
b)he had been pursued for ten years because of his Arab ethnicity; and
c)he had made non-specific claims of discrimination as an Arab in Israel.
The Tribunal accepted that the Applicant may have had a relationship with a Jewish woman in 1997, but said:
The Tribunal finds the whole account of his being targeted for having a relationship with a Jewish woman suffers from lack of plausibility and lacks internal consistency.[3]
[3] Court Book at 129
The Tribunal considered the statement from the Applicant’s brother which the Applicant’s migration agent had provided with his letter of 24th September 2007, but attached no weight to the statement. The Tribunal described the statement as “essentially a repetition of the Applicant’s claims” that added nothing further to the Applicant’s evidence.[4]
[4] Court Book at 130
The Tribunal expressed doubt and uncertainty about the exact nature of the attacks and injuries sustained by the Applicant and said:
Even if the Tribunal were to accept that these attempts to harm him did actually occur, the Tribunal is not satisfied that they occurred for the reasons adduced by the applicant.[5]
[5] Court Book at 130
The Tribunal did not accept the Applicant’s primary claim for protection, arising out of the relationship with the Jewish woman, saying:
In light of the above, the Tribunal finds that the applicant did not come to serious harm for the reason of his relationship with a Jewish woman. It follows from this finding that the applicant’s Arab ethnicity did not result in serious harm in his relationship with a Jewish woman, nor that he was pursued for many years because of his ethnicity.[6]
[6] Court Book at 130
The Tribunal then turned its attention to the Applicant’s claim that he would be persecuted because of his Arab ethnicity, noting that the Applicant had cited instances of discrimination in respect of employment because of not having done military service. The Tribunal accepted that some societal discrimination existed against Israeli Arabs living in Israel.
The Tribunal made this finding:
Even if the refusal of the two applications which the applicant made for other employment was due indirectly to his Arab ethnicity, the Tribunal finds that the harm suffered is not of the type or severity to constitute Convention persecution.[7]
[7] Court Book at 131
The Tribunal found that there was not a real chance that the Applicant would face persecution for the Convention reasons of ethnicity, race or religion if he were to return to Israel and affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court for judicial review of the Tribunal decision by filing an application on 31st December 2007. He filed a document entitled “Appellants Heads of Argument” on 25th January 2008 and a written outline of submissions on 19th March 2008.
The Applicant was later fortunate enough to obtain legal representation on a pro bono basis from Mr Michael Rynne of counsel, who appeared for him at the hearing, which took place on 26th March. Mr Rynne submitted a document containing the Applicant’s amended grounds, which varied significantly from those in the original application. Counsel for the Minister did not object to the Applicant proceeding on the amended grounds.
Amended Grounds of Review
The Applicant’s amended grounds of review are:
(1) Having found that societal discrimination exists against Arabs/Muslims in Israel failed to take into account as a relevant matter that discrimination is non selective and may encompass serious harm;
(2) That in prima facie accepting that the Applicant may have suffered serious harm, rejected the applicant’s reasons for that serious harm by applying a test of plausibility or internal inconsistency by reference to the applicant’s evidence that threats to “kill” him had been made, when the Tribunal should have taken into account that the act of “killing” as described by the applicant should be read down to include “serious harm”.
(3) Impermissibly rejected the applicant’s version of events leading to serious harm being perpetuated against him by applying a test of plausibility or internal inconsistency without counterbalancing such tests against the possibility that such reasons may well exist and should only be rejected in the face of positive evidence to the contrary.
(4) Failed to give adequate reasons as to the finding that having found that some discrimination occurred in Israel against Israeli Arabs, that such does not amount to Convention persecution.
It does not appear that the Respondents ever filed a Response.
Submissions
In view of the significant amendments to the grounds, both counsel relied on oral submissions.
Counsel for the Applicant, Mr Rynne, submitted that the Tribunal seemed to accept that the Applicant had sustained the injuries that he claimed[8] and accepted that some serious harm had been sustained by the Applicant, whether or not the injuries had been received as he had described. He said that the nature of the injuries and how they were inflicted was inchoate.
[8] Court Book at 130
The Tribunal accepted that there was some discrimination against Arabs in Israel. Discrimination is non-selective, Mr Rynne submitted. Discrimination can go from a slur to violence. That, in effect, was Ground 1.
As to the Applicant’s Ground 2, Mr Rynne submitted that, having accepted that the Applicant may have suffered serious harm, that there were threats from the Applicant’s former girlfriend’s family that they would kill him, the Tribunal tested the Applicant’s evidence against plausibility and inconsistency.
Caution should be exercised in the strict credit analysis of people in the position of the Applicant, who will embellish or exaggerate their accounts or even lie on occasions.
Mr Rynne submitted that there had been no challenge to the injuries sustained by the Applicant. What is more appropriate is not to view plausibility through the prism of life in Australia but through the eyes of people who fear persecution. The Tribunal should have read down the word “kill” to encompass “cause serious harm”. Then, measuring plausibility and internal inconsistency was asking the wrong question.
Counsel for the Applicant submitted that the other difficulty the Tribunal had was that it made a finding of fact:
In light of the above, the Tribunal finds that the applicant did not come to serious harm for the reason of his relationship with the Jewish woman. It follows from this finding that the applicant’s Arab ethnicity did not result in serious harm in his relationship with a Jewish woman, nor that he was pursued for many years because of his ethnicity.[9]
[9] Court Book at 130
This, he submitted, was just a straight out rejection of the Applicant’s evidence. Mr Rynne referred the court to the dissenting judgment of Kirby J in Minister for Immigration and Multicultural Affairs v Rajamanikkam[10] at [91]. Taking the paragraph from the media-neutral version, Kirby J stated:
Many, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of the credibility first by the delegate of the Minister and, if review is sought, by the Tribunal[11]. It is worth repeating the words of Gummow and Hayne JJ in Abebe v The Commonwealth[12]:
“…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.”
[10] (2002) 210 CLR 222; [2002] HCA 32
[11] For example see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 75 ALJR 848 at 854[32], 864 [86], 865 [94]; 179 ALR 296 at 304, 371, 319-320
[12] (1999) 197 CLR 510 at 577-578 [191], repeated in the joint reasons in Epeabaka (2001) 75 ALJR 848 at 854 [32]; 179 ALR 296 at 304.
I note that the quote of that paragraph that appears in the Applicant’s outline of submissions differs somewhat from the passage set out above. I note also, however, that the outline of submissions is signed by the Applicant himself and was not drafted by the Applicant’s counsel.
Mr Rynne submitted that the Tribunal took the letter from the Applicant’s brother into account but did not give it any weight. There was no evidence that the Applicant did not sustain his injuries from the relatives of his former girlfriend. He conceded that the Tribunal was not under a duty to make any further inquiries about the Applicant’s case.
Mr Rynne submitted that what the Tribunal had done, impermissibly, was jettison altogether the possibility that the Applicant may have sustained those injuries as he described.
As to the Applicant’s Ground 4, counsel for the Applicant submitted that the Applicant claimed persecution and discrimination because of a problem in obtaining employment. The Tribunal considered that claim but found that the harm was not of the severity that constitutes persecution. Having accepted that there was some discrimination, the Tribunal found that it was not sufficient to amount to persecution. The Tribunal fell into error by not giving adequate reasons for that finding.
Counsel for the First Respondent, Mr Hooker, submitted that the Refugee Review Tribunal reached conclusions that on the material before it were manifestly open. The critical passage in the decision concerning the Tribunal’s rejection of the Applicant’s account commenced in the second paragraph of page 129 of the Court Book:
The Tribunal accepts that he may have had a relationship with a Jewish woman in 1997 for about eight months. The applicant stated that he had three further meetings with this particular woman after she contacted him, two in 1998 and one in 1999, they were all in Netanya near Tel Aviv…The applicant stated that he has not had any contact with her since 1999. He claims he was shot in the head in 1997, stabbed in the back in 2002 and between 2002 and 2005, four shots were directed at him which missed the target: these shots were fired on two occasions in Afula and Tabun[13].
[13] Court Book at 129
This, Mr Hooker submitted, is certainly no affirmative statement that that level of detail had been accepted. The Tribunal gave reasons at pages 129-130 of the Court Book to give content to that rejection. What the Tribunal did in the following paragraph was to apply the “real chance” test, as set in Minister for Immigration and Ethnic Affairs v Guo[14] and Abebe v The Commonwealth (supra). He submitted that, properly construed, the Applicant’s submissions are “a creative way of merits review”.
[14] (1997) 191 CLR 379
The letter from the Applicant’s brother was rejected because it was of no weight. It was open to the Tribunal to do so.
Turning to the Applicant’s more general claim of discrimination against him because of his Arab ethnicity, the Tribunal dealt with that claim at pages 130 and 131 of the Court Book. The Tribunal’s approach was, he submitted, an entirely orthodox application of s.91R of the Migration Act. The Tribunal had in fact referred to s.91R earlier in the decision.
The Tribunal expresses the conclusion that some discrimination does not constitute persecution. This was a sustainable decision on the material before the Tribunal.
Conclusions
The Applicant relies upon four grounds. Ground 1 is a claim that the Tribunal failed to take into account a relevant matter, in that having found that societal discrimination exists against Israeli Arabs living in Israel, it failed to take into account that discrimination is non selective and may encompass serious harm.
Failing to take a relevant consideration into account has been described as one of the two most used grounds of review, the other being “taking an irrelevant consideration into account”[15](see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd[16] ). The Tribunal clearly accepted that there was some discrimination against Israeli Arabs, but then considered the circumstances of the discrimination which the Applicant claimed. The claim is that Israeli Arabs are discriminated against if they have not done military service. The Applicant told the Tribunal that military service is not compulsory for Israeli Arabs. He also told the Tribunal that “on every job application one is asked whether one has completed military service”.[17] He claimed that on two occasions he had been refused employment on two occasions for this reason. The Tribunal accepted that some discrimination exists, but:
Even if the refusal of the two applications which the applicant made for other employment was due indirectly to his Arab ethnicity, the Tribunal finds that the harm suffered is not of the type or severity to constitute Convention persecution.[18]
[15] Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co. 2004, Sydney at page 254.
[16] (1986) 162 CLR 24
[17] Court Book 130
[18] Court Book 131
The Applicant claims that the Tribunal failed to take into account that discrimination is non selective and may encompass serious harm. In my view, this claim cannot be sustained. True it is that the Tribunal accepted that that Israeli Arabs may face discrimination, but it does not follow from that finding that all discrimination amounts to persecution. The Tribunal considered the definition of persecution as involving “serious harm”, which is set out in s.91R(1)(b) of the Act. The Tribunal also considered the meaning of “serious harm” by referring to subsection 91R(2), which gives instances of serious harm for the purposes of subsection 91R(1)(b)[19].
[19] Court Book 125
The Tribunal then considered the instances of discrimination which the Applicant had claimed and found that the harm suffered was “not of the type or severity to constitute Convention persecution”. This was a finding open to the Tribunal on the evidence before it. The use of the words “type or severity” clearly indicates that the Tribunal was aware that discrimination may encompass serious harm, but decided in this case that the discrimination of which the Applicant complained was not of that degree of severity.
I am satisfied that the Tribunal did not fail to take a relevant consideration into account. The Tribunal correctly considered the definition of persecution as set out in s.91R and found on the evidence that the discrimination claimed did not amount to persecution. There is no jurisdictional error. The Applicant’s Ground 1 fails.
In Ground 2 of his amended application, the Applicant claims that the Tribunal fell into jurisdictional error in accepting that the Applicant may have suffered serious harm but rejected the Applicant’s reasons for that serious harm by applying a test of plausibility or internal inconsistency by reference to the Applicant’s evidence that threats to kill him had been made, when the Tribunal should have taken into account that the act of “killing” as described by the Applicant should be read down to include “serious harm”.
This ground has been argued as a failure to take a relevant matter into account. The Applicant has relied on the decisions of Kirby J in Rajamanikkam and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[20] in support of his case. In SGLB, Kirby J said at [7]:
Remembering the purpose of credibility: Credibility is often seen as the crucial issue in Tribunal determinations of Refugee status. The references in the Refugees Convention to the existence of “fear”, and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam[21], “[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility”. There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometime justified, refugee cases involve special considerations where credibility is an issue[22]. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear[23]. The Tribunal must be firmly told – if necessary by this Court – that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.
[20] [2004] HCA 32
[21] footnote deleted
[22] Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] 1167 FCA
[23] footnote deleted
In each case, Kirby J was in dissent. As counsel for the first respondent submitted, neither decision is authority for the proposition that applicants for protection visas are put into a particular category of witnesses. In my view, with respect, what Kirby J said in SGLB was that the Tribunal must be mindful of the particular characteristics of people who apply for refugee status when evaluating the credibility of their evidence. There is nowhere that I can see in the passage quoted above that suggest, with respect, that the Tribunal must unquestioningly accept as truth every assertion made by an applicant for a protection visa.
What the Tribunal did at page 130 of the Court Book was consider the Applicant’s claim that there had been attempts to kill him for the reasons that he claimed. The Tribunal expressed doubt that the attempts on the Applicant’s life would have continued for such a long time if they had taken place for the reason of his former relationship with the Jewish woman. The Tribunal said:
The Tribunal is unable to establish with any accuracy whether the applicant was actually shot, stabbed and shot at four times during the above stated period; even if the Tribunal were to accept that these attempts to harm him did actually occur, the Tribunal is not satisfied that they occurred for the reasons adduced by the applicant[24]. The Tribunal does not accept that if a person had been sent to kill the applicant because of his relationship with a Jewish woman the attempts would have been carried out over such a long period, without success and long after the relationship had well and truly ended.[25]
[24] emphasis added
[25] Court Book at 130
Clearly, the Tribunal was evaluating the Applicant’s claim that there were attempts to harm him for the reason of his former relationship and ended up rejecting it. The distinction that the Applicant makes between an attempt to kill him and an attempt to cause him serious harm is, as Mr Hooker submitted, a distinction without a difference. It was the claimed attacks that the Tribunal was considering and the motivation for them. It was immaterial whether they were attempts to kill the Applicant or merely cause him serious harm, and the Tribunal actually used the phrase “these attempts to harm him” in its decision.
The Tribunal was ultimately not satisfied that the Applicant had established a pattern of attacks on him for the reason of his former relationship, whether the attacks were attempts to kill him or attempts to do him some lesser degree of harm.
Ground 2 has not been made out.
The Applicant’s Ground 3 claims that the Tribunal fell into jurisdictional error because it impermissibly rejected his version of events leading to serious harm being perpetuated against him by applying a test of plausibility or internal inconsistency without counterbalancing such tests against the possibility that such reasons may well exist and should only be rejected in the face of positive evidence to the contrary.
It is well established that it is for the Applicant to satisfy the Minister, or the Minister’s delegate or, in this case, the Tribunal that the Applicant meets the criteria for a visa. In SGLB, Gummow and Hayne JJ stated that:
Further, s.65 of the Act provides that the Minister is to grant a visa sought by valid application “if satisfied” of various matters. These include that any criteria for the visa prescribed by the Act are satisfied (s.65(1)(a)(ii)). Section 65 imposes upon the Minister an obligation to grant or refuse a visa, rather than a power to be exercised as a discretion. The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned.[26] The delegate was in the same position as would have been the Minister (s.496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s.415).[27]
[26] Footnote deleted
[27] [2004] HCA 32 at [37]
The Tribunal must be affirmatively satisfied that the Applicant has established that he or she has a well founded fear of persecution for a Convention reason; the Tribunal does not have an obligation to cite “positive evidence” to disprove the Applicant’s assertions. It is not in the position of a “contradictor”:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out[28]
[28] Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187] per Gaudron J; see also Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105 per Heerey J at [8]
It was not, in my view, impermissible for the Tribunal to reject the Applicant’s account of the events that the Applicant claimed. The Tribunal found itself “unable to establish with any degree of accuracy whether the Applicant was actually shot, stabbed and shot at four times…”[29]
[29] Court Book at 130
It went on to find that even if it did accept that those attempts to harm the Applicant actually occurred, it did not accept that they occurred for the reasons advanced by the Applicant. This is not impermissible; it is an assessment of the Applicant’s evidence, which is a matter for the Tribunal. This may well involve an assessment of the credibility of the Applicant, or another witness:
…a finding on credibility, which is the function of the primary decision-maker par excellence.[30]
[30] Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67]
In my view, no jurisdictional error is made out in Ground 3.
Ground 4 of the Applicant’s amended grounds claims that the Tribunal fell into jurisdictional error in that failed to give adequate reasons as to the finding that having found that some discrimination occurred in Israel against Israeli Arabs, that such does not amount to Convention persecution.
The Tribunal is required by s.430(1) of the Migration Act to prepare a written statement that, inter alia, sets out the decision of the Tribunal and sets out the reasons for the decision, but a failure to give adequate reasons is not a ground for jurisdictional error. As counsel for the Respondent submitted, limited reasons for a decision may manifest an error but this fact is not of itself an error.
The Tribunal accepted that some discrimination occurs in Israel against Israeli Arabs, but found that the harm suffered as a result of this discrimination was not of the “type or severity” to constitute Convention persecution[31]. This is no more than an assessment by the Tribunal of the Applicant’s evidence and a decision that the harm suffered did not amount to serious harm as set out in s.91R(1)(b) of the Migration Act. That was a finding that was for the Tribunal to make based on the evidence before it.
[31] Court Book at 131
Ground 4 does not establish any jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision. Privative clause decisions are final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any court, and are not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (Migration Act, s.474(1)).
It follows that the application will be dismissed with costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 3 June 2008
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