WZARJ v Minister for Immigration

[2013] FCCA 232

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZARJ & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 232

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal’s decision – numerous grounds advanced by applicants – dispositive factual finding by Tribunal clearly open to it – grounds not made out – applications dismissed. 

Legislation:
Migration Act 1958 (Cth)

Cases cited:
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZQGC v Minister for Immigration and Citizenship [2012] FCA 598
Tickner v Chapman (1995) 57 FCR 451
Re; Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123

First Applicant: WZARJ

Second Applicant: WZARK

Third Applicant: WZARL

Fourth Applicant: WZARM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 247 of 2012

Judgment of: Judge Burchardt

Hearing date: 26 February 2013

Date of Last Submission: 26 February 2013

Delivered at: Melbourne (by video link to Perth)

Delivered on: 14 May 2013

REPRESENTATION

Counsel for the Applicants: Mr Hannan

Solicitors for the Applicants: CASE for Refugees

Counsel for the First Respondent: Ms Smith

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Applications be dismissed. 

2. The Applicants’ pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 247 of 2012

WZARJ

First Applicant

WZARK

Second Applicant

WZARL

Third Applicant

WZARM

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicants, who are a father and three sons, seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated

   
   

   10 September 2012.  Their amended application lists 16 grounds of asserted jurisdictional error.

2. For the reasons that follow, I do not think that the grounds are made out, and it follows that the applications must be dismissed. 

Background – the applicants’ claims

1. The applicant WZARJ is the father of the three other applicants, who are respectively his sons aged 15 (WZARK), 18 (WZARL) and 26 (WZARM).

2. The father was born in Kabul, but owned land in Behsud. 

3. Both the father and the other applicants are Hazara and Shia Muslims. 

4. In about 2007-2008, the first applicant (WZARJ) went to Behsud to take part in peace discussions with Kuchis with whom the Hazara community in Behsud were in dispute.  He did so as he was regarded as an elder in the village. 

5. While he was there, WZARJ attended a mosque, at which place an explosion took place and he was severely injured.  He ultimately was taken back to Kabul, where he spent considerable time in hospital but was able to attend a funeral ceremony for the people who had been killed in Behsud.  He was taken there from hospital.  It is quite clear that on this occasion, he was photographed and his photograph appeared in a newspaper having national circulation, although it does not appear that he was named.

6. The following year, about 2008 or 2009, there was a further attack on the village of Behsud by “Kuchi Taliban”.  WZARJ travelled to Behsud to help those who had been injured and stayed there for about 15 days.

7. In around 2009, WZARJ had built a swimming pool centre in Kabul, which he ran with his sons.  Approximately eight months before the date of his application, in around August 2011, the applicant was at the swimming pool with his sons WZARK (15 years) and WZARM

   
   

   (26 years).

8. Up to this point, the recitation of events’ background matters is uncontroversial, as all of the matters I have to set out were accepted by the Tribunal member as true and correct.

The claims about the visit of the Kuchis to the swimming pool

1. It is quite clear that it was the alleged visit of the armed group of Kuchis to the swimming pool that lay at the absolute centre of all of the applicants’ claims.  Although articulated in different ways, for reasons that will become apparent the gravamen of what was put was that the father, WZARJ, and his children concluded that the Kuchis had come to the swimming pool to kill the father and, by inference, the children, and that it was for this reason that they had left Afghanistan, selling the swimming pool business to enable them to do so.

2. On the particular occasion that the Kuchis were said to have visited the swimming pool, the only one of the applicants they spoke to was WZARK, who was then only 14.  What WZARK had to say at all stages of the description of the matter has been essentially consistent.  WZARK’s irregular maritime arrival entry interview is not available.  It is not part of the Court Book (“CB”) and no one has raised an issue arising from this.  I suspect he was not interviewed because of his youth.  At CB140-141, a Statement by WZARK is set out.  Relevantly, this Statement asserts at paragraphs 6-10:

   “6.    One day when I was helping my father at the pool, I was standing at the entrance of the swimming pool, when four armed Kuchis came to the entrance.  The men were wandering around outside.  They came up to me and asked me “Who is the owner of the swimming pool?”  I was very scared and couldn’t speak much.  I just said “I’m just an employee, I don’t know anything about the owner.”

   7.    I went to tell my father.  He was with (WZARM).  I told him that some Kuchis had come looking for him.  We jumped off a wall into the farm next door and went home.

   8.    I stayed at home with my father and brothers for the next two months.  I had to stop going to school.  I was scared but I just tried not to think about it.  I just tried to pass my time playing games and things.

   9.    My father told me we had to leave Afghanistan.  It was very depressing for me.  I was very upset leaving my mum and family at home.  I was worried about what would happen to us on the way to Australia.

   …

   10.  I fear that I will be killed or seriously injured by the Kuchi Taliban because I am part of the family and a son of my father.  There is nowhere safe for me in Afghanistan.”

3. I have set out that passage in detail being the only record of the swimming pool visit, because it gives the tenor of all the applicants’ reasons for leaving Afghanistan and coming to Australia.  It should be noted that on any view, only the second applicant (WZARK) spoke to these Kuchis.  He relayed the information to the first and fourth applicants (WZARJ and WZARM), who were then at the swimming pool and who on this version of events immediately decamped from it and, in due course, from Afghanistan.  The third applicant (WZARL) was in fact at home when the swimming pool visit occurred. 

4. The transcript of the proceeding before the Tribunal is annexed to the Affidavit of Tannaz Pasha filed on 20 February 2013, and the relevant extracts of WZARKs evidence are set out at pages 11 to 12.  What is recorded, relevantly, is as follows:

   “GS:     So what can you tell me about what happened when the Kuchis came to the swimming pool complex?

   WZARK:  They ask about the owner of the house, no sorry, the owner of the swimming pool and they’re asking where is MH (WZARJ), where is MH.

   GS: What did you say to them?

   WZARK:  I got scared because they were armed and after I noticed their weapons I got very scared – I told him I’m just an ordinary staff or worker here and I don’t know who the man is. 

   GS: And what did they say to that?

   WZARK:  They talked among themselves in Pashtun.  I ran up the stairs and informed my father and brother.

   GS: So they were talking to each other in Pashtun and you left them at the entrance to the swimming pool complex?

   WZARK:  I was just at the gate near the door – I wasn’t outside, I wasn’t completely inside, just at the gate.

   GS: Did you tell them that you would go and get someone who could answer their questions?

   WZARK:  I didn’t say anything to them I just went out and warned my father.

   GS: Okay so what did your father and brother say?

   WZARK:  He got scared and he scared obviously.”

The Tribunal’s findings about the swimming pool incident

1. The Tribunal’s decision records at CB330-333 the evidence given by WZARJ at the Tribunal hearing.  At paragraphs 86-92, the Tribunal recorded the interchanges that took place about the swimming pool incident.  I will not set these paragraphs out in full, but it should be noted that WZARJ gave evidence consistent with the accounts he had already given in his entry interview and his statements (see CB14 and CB91).  The Tribunal, it should be noted, traversed with WZARJ: 

   a)why the Kuchi men had asked who the owner of the swimming pool was but had asked for him also when, according to that answer, they would have known who the owner was (CB331 paragraph 87).

   b)the fact that WZARJ had built his swimming pool complex during the time between the last incident in Behsud in 2008 and the swimming pool incident,

   c)that it did not appear as a result that he had been scared of the Kuchis,

   d)why he had to immediately leave the swimming pool complex and go into hiding and flee Afghanistan when his younger son had come to him and said that there were some Kuchis asking for him,

   e)the fact that the incident in which WZARJ had been injured had taken occurred four years before the incident at the swimming pool,

   f)that the Tribunal was having difficulty in understanding what WZARJ claimed had happened at the swimming pool.  The Tribunal, in this regard (CB332 paragraph 92):

   “…put to him that the only thing I could find on the evidence before me as that they had come and that they had asked for him.  I noted that the applicant was saying that they had wanted to kill him but there was no actual evidence of that.”

2. The Tribunal’s decision also records the evidence of WZARK, WZARM and WZARL, but the description of those interchanges does not add anything material, given that I have already set out WZARK’s evidence in full. 

3. It should also be noted that the Tribunal put to the applicants (who were all present at this stage) that the Tribunal had difficulty in accepting their account of the incident at the swimming pool (see paragraph 105, CB334).

The Tribunal’s conclusions as to the swimming pool incident

1. The gravamen of the Tribunal’s findings about the swimming pool incident is set out at paragraphs 130 and following (CB339) as follows:

   “130.    The applicant said that before the incident at the swimming pool he had been scared of them but he had not been one hundred per cent sure that they had been after him or that they had been looking for him.  However, as I put it to him, his behaviour does not suggest that he was scared of them.  He returned to Behsud in 2008, a year after he was injured, and in 2009 he established the swimming pool complex in Kabul.  As I put to the applicant, his photograph was published in the newspaper and he has said that he is a well-known figure so if the Kuchis or the Taliban had wanted to harm him it would presumably have been quite easy for them to have found him.

   131.    The applicant and his son (WZARK) (who is the only person who it is claimed actually saw the Kuchi men) gave consistent evidence at the hearing before me that the Kuchi men who came to the swimming pool complex in Kabul asked who the owner of the swimming pool was and that they also asked where (WZARJ) (the applicant) was.  When I asked the applicant why in that case they would have been asking who the owner was he responded that because (WZARK) had been very young they had only just asked (WZARK) generally who the owner was.  He then confirmed, however, that they had also asked where he himself was.  After I put to him that this suggested that they had known that he had some connection with the swimming pool, he said that they had definitely had some information because they had come all the way to the swimming pool to look for him.

   132.    In her oral submissions the applicants’ representative said that she understood that these questions had been asked in a manner to reinforce each other, in case (WZARK) had not known who the owner of the swimming pool was.  She submitted that the questions had not been inconsistent.  I accept that the questions are not inconsistent.  One logical explanation for the two questions would be, for example, that the Kuchi men knew or believed that the applicant worked at the swimming pool complex but that they did not know that he was in fact the owner.  However if, as the applicant claims, they had come all the way to the swimming pool to look for him, there would have been no need for them to ask who the owner was.

   133.    As I put to the applicant, I have difficulty in accepting that, having been told by (WZARK) that there were some Kuchis asking for him, his immediate reaction would have been to leave the swimming pool complex, to go into hiding and then to flee Afghanistan.  As I put to him, because neither he nor his sons tried to find out what the Kuchis wanted, the only thing I could find on the evidence before me is that the Kuchis came to the swimming pool complex and that they asked for the applicant.  As I put to him, although he claims that they wanted to kill him, there is no actual evidence of that.

   134.    The applicant and his sons and the applicant’s representatives have all referred in this context to the fact that the Kuchis were armed.  However, as the applicant’s representatives themselves noted in their submission to the Department, there is a high level of gun ownership in Kabul and the illegal trade in weapons is poorly regulated.  I accept that, as the applicant’s representative said in her oral submissions at the end of the hearing before me, they relied on this evidence to suggest that it would have been possible for armed Kuchis to arrive at the swimming pool without causing significant disruption among civilians in the streets.  However I consider it equally relevant to the credibility of the evidence of the applicant and his sons regarding their reaction to the news that some armed Kuchis had come to the swimming pool complex and that they were asking for the applicant.

   135.    The applicant’s son (WZARM) said in his evidence that the police force, the security forces and the Taliban had arms and they were the ones who fought each other.  However, as I put to him, by all accounts both the Kuchis and the Hazaras who fought each other in Kabul in August 2010 had guns (see ‘Afghanistan:  Unrest spreading to more areas following ethnic clashes in Afghan capital’, Tolo TV, 13 August 2010, CX247495).  Given the high level of gun ownership in Kabul I do not accept that it is credible that the applicant and his sons would have concluded from the fact that the Kuchis had guns that they had come to the swimming complex to kill the applicant or his sons.

   136.    For the foregoing reasons I do not accept that the applicant and his sons are telling the truth about the Kuchi men having come to the swimming pool complex and having asked for the applicant.  I do not accept that the applicant and his sons left the swimming pool complex, went into hiding and then fled Afghanistan because some armed Kuchi men came to the swimming pool complex.  While, as referred to above, I accept that the applicant was injured in an incident in the district of Behsud in 2007 and that his photograph subsequently appeared in a major newspaper which circulated all over Afghanistan, I do not accept on the evidence before me that the Kuchis or the Taliban want to take revenge on him or other members of his family, nor that they want to kill him because he owns land in Behsud, because he is an elder of his village, because of the help he has provided to his village, because they regard him as an opponent or because perceive him as having connections to the government.” (sic)

The grounds of appeal

Ground 1 - The RRT Member never put to son WZARK, during the RRT Hearing, or subsequently, that he (i.e. the RRT Member) had difficulty in accepting WZARK’s account of Kuchi men with guns attending at the Kabul swimming pool complex owned by the Father.

1. The particulars to this ground, which are extensive, make the point that the Tribunal’s observation at paragraph 105 (CB334) that the Tribunal “put to the applicant and his sons that I had difficulty accepting their account of the incident at the swimming pool” was inaccurate, because this matter was only ever put to the father.

2. It was put accordingly that there had been a breach of the rules of natural justice in failing to put this matter to the son WZARK.  It is true that a reading of the transcript shows that this proposition was put directly only to the father (see transcript pages 10 to 11).

3. Nonetheless, it is clear from the transcript at pages 14-15 that the Tribunal member said in the presence of all the applicants:

   “Okay (WZARJ), as I have indicated to you I have some difficulty in accepting your account and your sons’ account of this incident at the swimming pool.”

4. Given that the applicant father, WZARJ, was clearly from the transcript acting as something of a spokesman or, at the very least the lead spokesman, for all the applicants, it is questionable whether there has been a breach of the rules of natural justice even on the version for which the applicants contend.  The Tribunal’s doubts about the accounts provided by the applicants were put to them in their presence.

5. Even if this series of events might be thought to establish that the Tribunal did not give the applicant WZARK an opportunity to respond to the Tribunal’s hesitation in accepting his evidence, I nonetheless accept the submission for the Minister that it was not a requirement for the Tribunal to give a running commentary about the veracity of the evidence put forward by the applicants.  As the High Court of Australia put it in a well-known passage in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]:

   “Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”

6. I accept the first respondent’s submission that this ground is misconceived and must fail. 

Ground 2 - The RRT Member never put to son WZARK, during the RRT Hearing, or subsequently that he (i.e. the RRT Member) had difficulty accepting Son WZARK’s account of Kuchi men with guns attending at the Kabul swimming pool complex owned by the Father.

1. This is the same natural justice point and, in my view, faces the same difficulty. 

Ground 3 - By reason of the matters pleaded in paragraphs 1 and/or 2 above, the RRT Hearing was conducted in a manner which was procedurally unfair towards to the Applicants (both collectively and individually).

1. This ground takes the matter no further in view of the findings I have already made. 

Ground 4 - The RRT Member rejected the Applicants’ accounts of the “swimming pool incident” (i.e. that Kuchi men with guns had attended at the Kabul swimming pool complex owned by the Father).  Such rejection was:

(1)made by reason of a failure on the part of the RRT Member to give proper, genuine and realistic consideration to the Applicants’ claims; and/or

(2)irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

1. The particulars of this ground run to 13 subparagraphs.  It should be noted that in a recent decision in SZQGC v Minister for Immigration and Citizenship [2012] FCA 598 at [32], Griffiths J said:

   “Secondly, it is now well established that the epithet “proper, genuine and realistic consideration” needs to be viewed with considerable caution because it invites the court to slide into an impermissible merits review” (cited authorities omitted).

1. His Honour went on to consider the meaning of the word “consider” at [33], and referred to the judgment of Black CJ in Tickner v Chapman (1995) 57 FCR 451 at page 462, where the Chief Justice said:

   “Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.”

2. Contrary to the submissions of the applicants, I do not accept that the Tribunal did not give genuine consideration to the applicants’ claims.  The reasons for decision speak for themselves, but in my view show that the Tribunal was keenly alert to what it was the applicants were saying.  Unfortunately for the applicants, they were not believed.  In circumstances where the primary claim made was that because of a visit by armed Kuchis who asked (putting the matter at its highest) where WZARJ was, without anything further, all four applicants fled Afghanistan in fear of their lives, in my view there is nothing illogical or erroneous in the Tribunal coming to the conclusion that such an assertion was simply not believable. 

3. It follows that this ground cannot be made out. 

Grounds 5 and 6 of the Amended Application

1. I have not set these grounds out in full as ground 5 is somewhat lengthy and ground 6 is wholly interrelated with it.  Once again, these constitute a detailed attack on the credibility findings made by the Tribunal.  The Tribunal found that “given the high level of gun ownership in Kabul, I do not accept that it is credible that WZARJ and his sons would have concluded from the fact that the Kuchis had guns that they (i.e., the Kuchis) had come to the Kabul swimming pool complex to kill WZARJ or his sons”.  Complaint is made that the Tribunal member used that finding to reject the proposition that the father had a well-founded fear that the Kuchis wished to kill the father and/or the applicants.  Criticism is made of the fact that the swimming pool incident was considered in isolation without placing that incident in the context of other relevant facts which the Tribunal member accepted as true.

2. While I accept that the Tribunal member had accepted a number of the factual assertions advanced by the applicants, including the father’s injury and standing in the Hazara community, there is nothing in my view illogical or inappropriate about the findings the Tribunal made.  The swimming pool incident was really at the heart and centre of the applicants’ claims, although of course I accept that it did not stand in isolation.  The fear that the applicants asserted was said to be interrelated with the prior history, which the Tribunal accepted.

3. Nonetheless, the Tribunal, as the first respondent submits, did not reject that account solely as a result of its inherent implausibility.  The Tribunal was also concerned that none of the applicants had even asked the Kuchis what they wanted and that there was no evidence that the Kuchis ever threatened the applicants at the swimming pool complex.  Given that finding and the fact that the assessment of the credibility was entirely a matter for the Tribunal (see Re; Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]) these grounds must fail.

Grounds 7 and 8

1. These grounds roll in a number of matters, including (see ground 8) an assertion that the RRT member:

   (1)did not consider an integer of the Applicants’ claims relevant to the issue whether Father (WZARJ) had a well founded fear that Kuchis wished to kill him and/or the other Applicants; and/or

   (2)failed to give proper, genuine and realistic consideration to the Applicants’ claims; and/or

   (3)reached a conclusion that was irrational, illogical and not based on findings or inferences of fact supported by logical grounds on the issue of whether Father (WZARJ) had a well founded fear that Kuchis wished to kill WZARJ and/or the other Applicants. 

2. The difficulty with this set of grounds is that in substance it involves merits review. 

3. The finding that the Tribunal made that it accepted here that WZARJ had provided assistance to the Hazaras in the past and would no doubt do so in the future but had not been, on the evidence, targeted by the Kuchis or the Taliban in the past for providing such assistance, nor was there a real chance that this would occur in the future, was in my view eminently open to it.  It is true that WZARJ had been injured in a bomb attack at a mosque at a time when he was providing assistance to the Hazaras, but the Tribunal’s conclusion that this did not mean that he was targeted by them was in my view well open to it.  It was clear on any view that the father had lived comfortably in Kabul from about 2007-2008, when the attack took place, to 2011 without any untoward incident.  It could not be said that the Tribunal’s conclusion was irrational or illogical or made without evidence. 

4. Furthermore, the integer said to have not been considered by ground 8 (1) is not identified, nor is it spelt out in what fashion the Tribunal failed to give proper consideration to the claim. 

Ground 9 - The RRT Member assessed the credibility of the Applicants’ accounts of the “swimming pool incident” by reference to “country information” concerning gun ownership which was irrelevant to those accounts.

1. This ground is said by ground 10 to involve a denial of procedural fairness, a failure to give proper and genuine considered and realistic consideration to the applicants’ claims and to be a finding that was irrational, illogical and not based on findings on inferences of fact supported by logical grounds. 

2. In my view the submissions of the first respondent should be accepted.  First of all, it is clear that the Tribunal failed to believe the applicants’ account of the swimming pool incident because of an inherent implausibility in it, given the matters to which I have already referred above.  Second, the country information relied upon by the Tribunal was squarely put to the applicants at the hearing.  The fact is that the applicants asserted, at least amongst other things, that it was the arrival of these armed men that caused the fear of harm that led them to leave Afghanistan.  The Tribunal’s use of country information was simply to point out that armed men are by no means uncommon in Kabul.  This fact was plainly relevant to the Tribunal considering whether or not the applicants’ account should be believed.  These grounds must fail. 

Grounds 11 and 12 of the Application

1. These grounds are similar in style to grounds 9 and 10, but refer to:

   “The RRT Member assessed the credibility of the Applicants’ accounts of the “swimming pool incident” by reference to “country information” concerning Kuchi/Hazara general ethnic conflict in Kabul which was irrelevant to those accounts.”

2. Contrary to the first respondent’s submissions, this is not merely a repeat of the matters set out in grounds 9 and 10.  Nonetheless, so far as I can see, the only country information referred to relating to Kuchi/Hazara general ethnic conflict is at paragraph 107 of the decision (CB 334), that accepted that there had been an attack on Shia Muslims in Kabul in December 2011 but that this was rare.  This does not seem to me to operate on the matter in any significant way, and to the extent that it played any part in the Tribunal’s decision, there could be no complaint taken of it.

Ground 13 - The RRT asked itself the wrong question and/or misconstrued the expression “well founded fear of being persecuted” in Article 1A(2) of the Convention by (in effect) requiring the Applicants to establish why the Kuchis wanted to kill Father (WZARJ) and/or the other Applicants.

1. In my view, this ground must be rejected, substantially for the reasons advanced in the written submissions for the first respondent.  What the Tribunal did was examine the applicants’ accounts of what took place.  The Tribunal did not believe the applicants, because taken overall the account that was put forward was just simply insufficiently persuasive for the Tribunal to accept it.  These reasons have already traversed the core matters advanced by the applicants and the Tribunal’s response to them, namely the swimming pool incident.  The fact is that the account given by the applicants was just not believed by the Tribunal, and for the reasons already given, that finding was in my view open.

Ground 14 - The RRT asked itself the wrong question and/or misconstrued the expression “well founded fear of being persecuted” in Article 1A(2) of the Convention by (in effect) requiring each of the Applicants (including Son WZARK who was only 14 years old at the time) to “find out what the Kuchis wanted” before going into hiding and fleeing Afghanistan.

1. In substance, this is very much the same as ground 13.  Once again, it misconstrues the way in which the Tribunal went about the matter.  The Tribunal did not require the applicants to find out what the Kuchis wanted.  The Tribunal merely noted that one of the aspects of the matter that it found troubling was that nobody had done so.  In circumstances where armed men came asking for WZARJ, and WZARJ promptly fled, it was not unreasonable to the Tribunal to note and pay regard to the fact that no one had ever asked the Kuchis what they wanted.  It was also open to the Tribunal to find, as it did, that on the evidence there was no threat or attempt to kill any of the applicants.

Ground 15 - The RRT asked itself the wrong question and/or misconstrued the “risk component” in the expression “well founded fear of being persecuted” in Article 1A(2) of the Convention.

1. The Tribunal set out the law in relation to the expression “well-founded fear of being persecuted” at paragraphs 4-12 of its Decision Record (CB317-318).  That recitation is, in my view, unexceptionable.  There is, furthermore, no suggestion that the Tribunal did not approach the task of evaluating the applicants’ claims consistently with that recitation.  This ground must fail. 

Ground 16 - The RRT Member rejected the proposition that Father (WZARJ) had a well founded fear that Kuchis wished to kill Father (WZARJ) and/or the Applicants (i.e. Sons WZARM, WZARL and WZARK) without considering the possibility that the RRT Member’s assessment of the credibility of the Applicants’ accounts of the “swimming pool incident” may have been wrong.

1. It is not the case that the Tribunal is required in each and every instance to apply the “what-if-I-am-wrong” test.  In MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123, Keane CJ, Perram and Yates JJ referred at [95] to the “what-if-I-am-wrong” test relevantly as follows:

   “In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal’s own reasons. If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.”

2. In this case, a fair reading of the Tribunal’s decision, in my opinion, shows that the Tribunal was under no doubt that the claimed events had not occurred and accordingly, there was no warrant for it to consider that its conclusions were erroneous.

Conclusion

1. For the above reasons, the applications must be dismissed. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  14 May 2013