FEDERAL COURT OF AUSTRALIA

Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296

MIGRATION – fact-finding process of Refugee Review Tribunal – whether Tribunal must take into account the possibility that evidence with which it was not satisfied, or which it did not accept, might nevertheless be correct

Migration Act 1958 (Cth)

High Court Rules 1952 (Cth) O 55 r 17, r 30

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 cited

Abebe v The Commonwealth of Australia (1999) 197 CLR 510 cited

Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 220; [1999] FCA 719 cited

APPLICANTS A233 OF 2003 v REFUGEE REVIEW TRIBUNAL & MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 128 OF 2004

COOPER, MARSHALL & MANSFIELD JJ

12 NOVEMBER 2004

ADELAIDE

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         Leave to applicants to appeal from the decision of a judge of the Court given on 28 May 2004 is granted.

2.         The appeal is dismissed.

3.         The applicants pay to the second respondent her costs of and incidental to the application for leave to appeal and of the appeal to be taxed if not agreed.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

the court

INTRODUCTION

1                     This is an appeal from a decision of a judge of the Court dismissing an application for an order nisi seeking the issue of writs of certiorari, mandamus and prohibition and for injunctions against the respondents.  In substance, the applicants failed to have set aside a decision of the Refugee Review Tribunal (the Tribunal) made on 13 April 2000 which affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (the Minister) that the applicants should not be granted protection visas under the Migration Act 1958 (Cth) (the Act).

2                     The applicants are husband and wife.  They are Albanian citizens.  They arrived in Australia on 29 December 1997.  On 27 March 1998 they applied for a protection visa under the Act.  Only the male applicant (the claimant) made specific claims that he was a refugee as defined in Art 1A(2) of the Refugees Convention as amended by the Refugee Protocol (the Convention) so as to satisfy the criterion for the grant of a protection visa specified in s 36(2) of the Act.  The female applicant’s application depended upon her status as a member of the claimant’s family, and upon the claimant’s application succeeding.

3                     The applicants argued that the claimant had a well-founded fear of persecution by reason of his political beliefs.  Counsel for the applicants acknowledged that the learned judge at first instance accurately recorded the bases of that claim in the following passage:

‘(a)      The claimant said that he had expressed political opinions contrary to the then Communist government in Albania and had been imprisoned in 1984 for a term of 14-16 years.  He was subsequently released from prison in 1991 when the Communist government collapsed.  However, he claimed that the Communists had been re-elected to government in 1996 and were attempting to rearrest all of those released in 1991 so that they could complete their sentences.

(b)       The claimant said that he joined the Democratic Party upon his release from prison in 1991.  He stated that he participated in meetings, but was not particularly active.  However, he claimed that those that supported the Democratic Party have been targeted by the Government and that there was no police protection.

the tribunal’s reasons

4                     The application before the Tribunal failed because the Tribunal did not accept that the claimant had been imprisoned for a lengthy period under the former Communist regime as he claimed and also did not accept that those who had been detained during the former Communist regime and had not completed their sentences were at risk of being re-arrested following the re-election of a Communist government in 1996.

5                     Although the Tribunal accepted that there may have been some persecution of some persons associated with the Democratic party in Albania, the Tribunal did not accept that the claimant was at risk of such harm because it did not accept that he had had any significant involvement in the Democratic party.  It also found that the Democratic party was still able to participate in the political process in Albania, so that those with limited involvement in it (such as the claimant) did not face a real chance of harm because of any association with that political party.  Counsel for the applicants on the appeal did not seek to attack the Tribunal’s conclusion in relation to that latter ground.

6                     The Tribunal did not accept that the claimant was imprisoned for a lengthy period under the former Communist regime until 1991 or thereabouts, for two reasons.  The first was the inability of the claimant to give an accurate account of the date of his release.  The second was his inability to accurately identify the exact period of his sentence.  It also addressed a document purportedly from the District Court in Shkoder dated 4 October 1990, which appeared to certify that the claimant had been imprisoned as he alleged.  It identified the date of the imprisonment order as 20 July 1969, well before 1985, when the claimant said he was sentenced to imprisonment.  The Tribunal did not consider the document had any evidentiary weight at all, and consequently did not consider that it changed the conclusion which it had already reached.  It expressed that conclusion in the following terms:

‘When these problems with his evidence are considered together, the Tribunal concludes that it is not satisfied that the applicant was sentenced to imprisonment under the former communist regime as claimed.’

7                     The claimant told the Tribunal that, following his release in 1991 or thereabouts, he had no problems in Albania with the Albanian authorities until after his arrival in Australia on 29 December 1997 on a visitors visa.  He claimed to have then learned that people gaoled under the Communist regime were being re-arrested to complete their sentences.  The Tribunal did not accept that.  There were three reasons for that conclusion.  The first was the absence of any independent evidence, apart from the indirect anecdotal evidence provided by the applicant as hearsay, that persons who had been arrested under the former Communist regime and released in 1991 were being re-arrested to complete their sentences.  The Tribunal thought any such conduct (if it had occurred under the control of the government) would have generated considerable publicity.  The second was to discount as having no evidentiary weight, a document dated 12 June 1998 produced by the applicants which asserted that, by government resolution of 18 September 1997, those sentenced before 1990 who had not completed their sentences were vulnerable to being re-arrested.  The third reason followed from the Tribunal’s decision not to accept that the claimant had been arrested and imprisoned during the previous Communist regime as he alleged.  The Tribunal noted that the premise for his vulnerability to re-arrest, even if that were generally occurring, was not applicable to the claimant because it was not satisfied that he had previously been imprisoned and released in 1991 before he had completed the sentence which had been imposed upon him. 

8                     Consequently, the Tribunal concluded:

‘Taking all of the evidence into account, the Tribunal is not only not satisfied that the applicant was detained during the Communist regime, it is also not satisfied that any of those released after the fall of this regime are being returned to prison.  In passing the Tribunal does note that the applicant’s advisor indicated that Mr Eric Lloga had he provided evidence would have indicated that people were being re-arrested.  However in the absence of this evidence and the circumstance in which it is occurring, the Tribunal is left in a position where it is not satisfied that re-arrests are occurring.’

THE APPLICATION FOR PREROGATIVE RELIEF

9                     It was only on 18 June 2003, some three years after the Tribunal decision, that the applicants issued proceedings in the High Court seeking the orders which were addressed by the learned judge at first instance.  On 14 October 2003 the matter was remitted to this Court for hearing and determination.  Under O 55 rr 17 and 30 of the High Court Rules 1952 (Cth), it was necessary that the application to the High Court be the subject of an extension of time order.  Upon its remittal, however, it is unclear whether those time limitations apply.  There are no parallel time limitations in respect of seeking orders nisi for certiorari or mandamus in the Federal Court Rules.  The learned judge at first instance found it unnecessary to determine that issue simply because his Honour dismissed the application on the merits.  We are of a similar view.

10                  Counsel for the applicants acknowledged that, the decision at first instance which involved the refusal of an order nisi for prerogative relief sought may be a decision of an interlocutory nature, rather than a final decision, notwithstanding the effect of the order.  If it has that character, counsel for the respondents did not object to leave being given to appeal from the decision at first instance:  see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399.  That leave is accordingly given.  The Court then proceeded to hear the appeal.

11                  The ground of appeal argued both at first instance and on this appeal is that there was jurisdictional error by the Tribunal in failing to take into account, in reaching its ultimate conclusion, the possibility that the evidence which it did not accept might nevertheless be correct, and that it therefore failed to exercise its jurisdiction as required by the Act.  That contention did not find favour before the learned judge at first instance.  It has been reagitated on this appeal.

12                  The contention is based upon the expression of the Tribunal that it was not satisfied, or did not accept, the claims made by the claimant for the reasons identified.  Reliance is placed upon the principles established by the High Court in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 575 – 576, and in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 (Abebe) at 544 – 545, [82] – [84] per Gleeson CJ and McHugh J.  Those principles were recognised and applied by the Full Court of this Court in Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCA 220; [1999] FCR 719 (Rajalingham), especially per Sackville J (with whom North J agreed) at 239 – 241 [60] – [67].  As there is no real issue about those principles, it is not necessary to refer to them in detail.  As Sackville J pointed out at 239, [60], the ultimate question for the Tribunal is whether it is satisfied that a visa applicant has a well-founded fear of future persecution, that is has a real substantial basis for the fear that something will occur or will occur for a particular reason.  In forming that view, the Tribunal may not foreclose reasonable speculation about the chances of the hypothetical future event occurring.  In Guo at 576, in the majority judgment (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) their Honours said:

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

13                  In Abebe at 544, [82] Gleeson CJ and McHugh J pointed out that a logical starting point in a matter such as the present, to determine whether the claimant has a well-founded fear of persecution for his political opinions, is to decide whether he had been detained as he claimed.  There is no criticism of the Tribunal for starting at that point.  Their Honours at 544 – 545, [83] pointed out, however, as follows:

‘The prosecutor carried no onus of proof in relation to these matters, and the fact that she might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail.  As Guo makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution.  The Tribunal “must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution”.  However, given the nature of the prosecutor’s claim, the Tribunal was entitled – indeed bound – to start its inquiry by considering her claim that she had been arrested by government officials for political reasons.’

14                  Sackville J in Rajalingham expressed the matter in the following terms at 241, [67]:

‘In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons.  If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.  Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued.  A “fair reading” of the reasons incorporates that principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”:  Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.  Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur).  If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.’

15                  Abebe was a case not unlike the present.  In that case too, the account by an applicant for a protection visa, of a past arrest by government officials for political reasons, was not accepted by the Tribunal.  It gave reasons for not accepting the account of the arrest, namely inconsistencies and admitted lies.  Indeed, the visa applicant in that case had previously stated that she had never been arrested or detained.  Gleeson CJ and McHugh J at [85], 545 pointed out that once the Tribunal was unable to find that the visa applicant in that case had been arrested as claimed, her further claims of detention and rape became logically irrelevant.  That is the third of the Tribunal’s reasons for rejecting the second step in the claimant’s case in this matter relating to his fear of being re-arrested.  Their Honours in Abebe continued:

‘Nor given the nature of her claim and the Tribunal’s finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed.

Once the Tribunal made the findings which it did in relation to the prosecutor’s claim of being arrested for her or her husband’s political opinions, her claim of having a well-founded fear of persecution for reasons of political opinions inevitably failed.’

16                  The difficulty confronting the applicants in this matter is that they must overcome the findings of the learned judge at first instance who found that a fair reading of the Tribunal’s reasons indicates that it had no real doubt that the claimant had not been arrested in the past as he claimed, and further that it had no real doubt that there was not a program for the re-arrest of persons who had previously been sentenced under the former Communist regime, released prematurely in 1991, and who had not completed their sentences.  As the Court on this application adheres to those conclusions, we are of the view that the Tribunal did not err, as asserted, by failing to take into account the possibility that those alleged events might have occurred. 

17                  On this application, it is not the function of the Court to re-hear and re-determine matters which have been determined by the Tribunal as matters of fact.  An error of fact does not of itself demonstrate jurisdictional error.  It is, however, possible to be wary of the finding of fact made by the Tribunal that it ‘does not accept’ that the claimant was imprisoned for a lengthy period under the former Communist regime.  Its reasons are confined to two inconsistencies, firstly between the claimant telling the Tribunal at the hearing that he had been released in October or November 1990, or (as an earlier statement indicated) that he had been released in September 1991, and then the Tribunal not accepting the explanation that the claimant had been released in 1990, but after three months was returned for another eight months imprisonment, as that return to prison was not mentioned in his initial statement.  That was said to cast doubt on his claim of having been detained.  In Abebe, Gummow and Hayne JJ at 577, [191] said:

‘… 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.’

The initial statement supporting the application for a protection visa was prepared by a migration agent, and the claims were dealt with in a little over one page of that document including the following:

‘In 1984 I expressed discontent with the Communist regime to some workmates.  I was arrested after someone among the workers in our collective reported me to the police for expressing my opinion.  I was sentenced to 16 years in prison – I have enclosed documents from Albania to prove this.  I was released in September 1991 when the Democrats came into power and granted an amnesty for political prisoners.’

To provide such a laconic detail of the claims in the way in which the Tribunal did, may run close to failing to give regard, or proper regard, to the cautionary words of Gummow and Hayne JJ in the passage quoted.  Whether the claimant simply got the dates of his release wrong, either during his evidence or in the initial document, and then sought to explain away the inconsistency, or whether (as he said) he had been released in 1990 but re-arrested, does not seem of itself to point firmly to the conclusion that he had not been arrested.  The Tribunal does not make any adverse comments about his demeanour or his manner of giving evidence or give other reasons for rejecting his evidence.  The second inconsistency leading to rejecting his evidence on that topic again involves a similar discrepancy as to the length of his period of imprisonment.  Apparently he gave evidence at the Tribunal that he had been sentenced for a total of 14 years imprisonment, comprising two separate sentences of eight and six years, whereas his earlier document stated that he was sentenced to 16 years imprisonment.  The Tribunal regarded it as implausible that he did not know with accuracy ‘the exact period of his sentence’. 

18                  If that were the only basis upon which the Tribunal determined the application contrary to the interests of the claimant, there may have been some merit in the contention on behalf of the applicants that the Tribunal failed to consider whether there was a real and substantial chance that, despite those inconsistencies, the claimant may nevertheless have been imprisoned on the basis upon which he described.  A fair reading of its reasons might disclose that, whilst it was not affirmatively satisfied as to the fact of his imprisonment as he claimed, the Tribunal may have had some doubt about that matter. 

19                  The Tribunal has not expressed its findings in a positive way, but as a lack of satisfaction about the asserted imprisonment.  It has made no observations directly critical of the claimant’s demeanor.  The two inconsistencies on which it has based its conclusion are, in context, not so dramatic as necessarily to lead to the conclusion that the claimant was fabricating evidence.  The absence of positive persuasion as to the correctness of a claim does not convert into the existence of positive persuasion as to its incorrectness.  However, on the other hand, the Tribunal’s reasons do not on their face suggest that the Tribunal had any real doubt about its findings.  The mere fact that they are expressed in terms of a lack of satisfaction about certain events having occurred, and in terms of non-acceptance of those events having occurred, does not of itself indicate some lack of doubt on its part.  The Tribunal’s reasons are to be read as a whole.  It has ascribed significance to inconsistencies which others may have treated as minor and understandable.  The Court’s function on this application is not to assess whether it ought to have done so, but to assess whether – it having done so – in the terms and in the manner it did – the Tribunal in fact retained some residual doubt that the claimed imprisonment had occurred.  We have come to the view that the Tribunal in this matter did not retain such doubt.

20                  The absence of doubt about the findings of the Tribunal as to whether those who had been arrested and imprisoned by the former Communist regime before 1990, and released in 1991, were vulnerable to re-arrest to complete their sentences, in our view, is more positively demonstrated.

21                  In our judgment, a fair reading of the Tribunal’s reasons shows that the Tribunal did not have any real doubt that the asserted re-arrest program is simply not taking place.  Because that is an integral part of the claimant’s claim, and the Tribunal rejected it, the present application must fail in any event.  We consider the Tribunal made the firm finding that there was no program of re-arrest of those who had not completed their sentences and who had previously been sentenced following the re-election of the Communist regime in 1996.

22                  The claimant’s evidence was that he had had no problems from 1991 to the time up to his departure from Albania to Australia.  It was only after he had arrived in Australia that he learned those released in 1991 were being re-arrested.  That was inconsistent with his initial statement which said that, following the Communist re-election in 1996, he had been under constant surveillance and that he had heard that the government planned to re-arrest those released in 1991 to complete their sentences.  He said that they left for Australia because he was fearful of arrest as he had four years of his sentence left.  The detail in that statement is such as not to admit readily of an explanation of a misunderstanding.  The inconsistency led the Tribunal to say:

‘From this the Tribunal concludes that the applicant in fact had no problems in the 1990s prior to his departure.  In addition, the change in his accounts of when he allegedly learned that people gaoled under the communist regime were being arrested, and the differences in his evidence about surveillance satisfy the Tribunal that the applicant is not wanted for re-arrest and was not kept under surveillance. … The Tribunal has also not seen any independent evidence and none has been provided by the applicant or his adviser …, and considers that if the Socialist Party which is now in government took such a step then there would have been an outcry about it.

As a result the Tribunal also does not accept that people have been to the applicant’s home looking for him as claimed in his statement.’

23                  The Tribunal then dealt with a further certificate dated 12 June 1998 referring to an alleged government resolution of 18 September 1997 concerning the re-arrest of those sentenced before 1990 who had not completed their sentence.  In the light of the applicant’s evidence that such certificates can be obtained from people who have ‘scant regard for the truth of the contents’, it did not attribute any weight to that certificate.  It continued:

‘As stated above, the Tribunal considers that the re-arrest of those released under the Communist regime would create a significant amount of publicity and the Tribunal is not aware of any other information pointing to this occurring.  Further given that the Tribunal has not accepted that the applicant was sentenced in the first place and then released, it follows that the Tribunal does not accept that the applicant is in the category of someone who has not completed a sentence.  As a result the Tribunal is not satisfied that the certificate indicates that the applicant faces a real chance of persecution should he now return to Albania.’

The Tribunal, understandably, regarded it as likely that any such re-arrest program would produce a public outcry, which would have been noted in at least some of the available independent country information about Albania.

24                  In our judgment, a fair reading of the Tribunal’s reasons on that topic lead to the conclusion that it had no real doubt that there was no re-arrest program as the claimant asserted, but also that the claimant himself was not vulnerable to any such program.  It was not incumbent upon the Tribunal in that circumstance to consider the possibility, despite its expressed lack of satisfaction about the existence of any such program or its application to the claimant, that there was or may be such a program and it may have applied to the claimant.

25                  Accordingly, the Tribunal is not shown to have committed jurisdictional error by failing to address the existence in the claimant of a well-founded fear of persecution for reasons of his political views in accordance with law.

26                  We have not overlooked the opening and concluding sections of the Tribunal’s reasons in reaching the above conclusion.  We have however read them in context.

27                  The introductory section to the Tribunal’s reasons reciting the proper interpretation of Art 1A(2) of the Convention is fairly standard in reasons for decision of the Tribunal.  So too are the concluding remarks expressed by reference to the ultimate question which the Tribunal is required to answer.  Those introductory and concluding remarks should not be seen or read remote from the process of reasoning by which they come to be reached.  Such expressions are in most cases relatively standard.  It is fair to say that a more significant component of the Tribunal’s reasoning in a case such as the present is in that part in which it explains the conclusion it reaches and why it reaches that conclusion.

28                  In our judgment, the appeal should be dismissed with costs.

Associate:

Dated:              11 November 2004