FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  There be no order as to costs.

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

EX TEMPORE REASONS FOR JUDGMENT

The Applicant, Mr Zayout, applies to the Court to review the decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the Respondent Minister not to grant to him a protection visa.  Such a visa would be granted to an applicant in circumstances where the Minister or, on review, the Tribunal is satisfied that the Applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967.

The Applicant submits that the Tribunal in its reasons has made an error of law.  The making of such an error is a ground of review under the provisions of s 476(1)(e) of the Migration Act 1958 (“the Act”).  The error of law contended for is that the Tribunal in finding that what happened to the Applicant between 1986 until 1994 was not persecution for a Convention reason applied the wrong test in the same way as I found the Tribunal had done in an earlier case:  Mohamed Dahir Mohamed v Minister for Immigration and Multicultural Affairs (unreported, 11 May 1998).

The Applicant was born and grew up in Tripoli as a Christian.  He worked for some time between 1979 and 1985 in Iraq although in that time returned several times to Lebanon.  The main basis upon which the Applicant put his case to the Tribunal related to events which occurred between 1986 and 1994 when the Applicant left Lebanon.  It was the Applicant's case before the Tribunal, at least initially, that in this period he was daily taken by the Syrians in occupation of the area in which he lived for questioning.

His evidence was that every time an incident happened in the area he would be taken to the station for questioning.  The longest time he was held there was 24 hours, the shortest for one or two hours and that the worst treatment he had received was being pushed into a room and being made to wait for several hours, sometimes ten hours, until the person in charge came.  He also claimed that on one occasion he was slapped whilst being questioned.

It appears from the reasons of the Tribunal that the Applicant changed his evidence when the Tribunal indicated that it had difficulty believing it, at least to the point that the questioning took place three or four times for every single week and on average he was kept at the station for about 12 hours.

There are other matters that were raised by the Applicant concerning other incidents which are not relied upon now by the Applicant.  I should also add that a close friend, a Mr Yacoub Zeidan, gave evidence on behalf of the Applicant to the effect that the Applicant was often taken for questioning by the Syrians and on some occasions he had seen the Syrians come to the Applicant's home or shop to take him for questioning.

The reasons of the Tribunal commenced with what one might describe as an unexceptionable discussion of the relevant law applicable to the question of whether a person satisfied the Convention tests.  Because of the way the matter is argued it is necessary to set out some of that discussion, although there is no dispute between the parties as to the correctness of it.  The member said, inter alia:

“ ... the applicant must fear persecution.  Not every threat of harm or interference with the person’s rights for a Convention reason constitutes 'being persecuted’.  Mason CJ referred to persecution as requiring ‘some serious punishment or penalty or some significant detriment or disadvantage’: see Chan Yee Kin v MIEA (1989) 169 CLR 379 at 388.  Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason.  In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures ‘in disregard’ of human dignity.”

The Tribunal, after narrating the evidence which the Applicant and Mr Zeidan had given, then made some brief reference to documentary material concerning the situation in Lebanon.  The Tribunal noted that the Department of Foreign Affairs and Trade had indicated that the effect of Syrian presence on most ordinary Lebanese was minimal and did not disrupt the daily lives of citizens but noted however, that there were:

“ … instances when individuals sought by the Syrian authorities were taken for questioning and that such individuals were occasionally imprisoned in Syria.”

The Tribunal concluded that the chances of the Applicant facing persecution in Lebanon in the reasonably foreseeable future were remote and insubstantial.  In giving reasons for this conclusion it discussed the question of credibility of the Applicant and formed the view that the Tribunal was not satisfied that he was a credible witness, saying that his account in regard at least to his material claims was “unconvincing, exaggerated and incoherent”.

Particularly, it found that while his account that he was taken in for questioning related to his refusal to align himself politically with Syrian forces, it found his claim as to frequency of questioning to be grossly exaggerated.  It also took the view that while the evidence of Mr Zeidan was not completely untrustworthy it viewed that evidence with some reservation because of the friendship between the witness and the Applicant and it made the somewhat peculiar comment that it was self-serving.

The Tribunal then said, and it is this passage upon which the Applicant relies to establish an error of law:

“In view of the above, I accept that the applicant was taken for questioning on a few occasions.  I find that the worst treatment he suffered was being slapped and being made to wait for long periods.  I do not consider these treatment [sic]  to be so serious as to amount to persecution in the sense of the Convention.  On these findings, I am not satisfied that the applicant was subjected to a systematic course of conduct amounting to persecution.”

It is the Applicant's submission that this passage, and particularly the last sentence of it, indicated that the Tribunal applied the wrong test in determining whether conduct amounted to persecution.  The submission was that the Tribunal required conduct to be systematic before it could amount to persecution, and in so doing fell into error.

I had cause in the case of Mohamed to consider the relationship between system on the one hand and persecution on the other.  What I said there has been followed in at least two cases of which I am aware: see Ibrahim, Hussein Mohamed Haji v Minister for Immigration & Multicultural Affairs (unreported, Katz J, 15 October 1998) and Abdalla v Minister for Immigration and Multicultural Affairs (Full Federal Court, unreported, 20 August 1998).  The point I made in that case was that a suggestion that all conduct must be systematic before it amounted to persecution would clearly be wrong because it would mean that an individual act addressed at least to a person could not amount to persecution.  That it can is clear enough from the comments made in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 to which I made reference in that case.

No doubt the question of system can have relevance to persecution.  Conduct against a group of people, if systematic, would no doubt constitute persecution in respect of a group, even if nothing happened to a particular individual member of it.  Further, no doubt the fact that an act which itself was not persecution happened once to a person would not suggest that it alone could fall within the Convention, but where it happened to that person systematically (using the word “systematically” as equivalent to “cumulatively”) the consequence could amount to persecution.  Obviously it will be necessary to look at each case by reference to its own facts.  In Abdalla, the Full Court comprising Burchett, Tamberlin and Emmett JJ said in a joint judgment:

“In substance the RRT decided, in the present case, that the recurring pattern of communal violence, which it found to exist in Somalia, did not amount to persecution because there was no systematic course of conduct.  The requirement, in our view, was too widely expressed.  Where there is a  recurring pattern of violence towards a person on a Convention ground, there is no reason why such conduct may not constitute “persecution”.  Clearly “persecution” involves more than a random act.  To amount to “persecution” there must be form of selective harassment of an individual or of a group of which the individual is a member.  One act of selective harassment may be sufficient.  The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount to “persecution”.  It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger.”

There is no doubt that in its discussion of the law and in the passage which I have quoted the Tribunal made no error in the emphasis it placed upon “system” for it referred to the words “a systematic harassment” in the context of group membership rather than in the context of individual acts.  However, it is submitted that when it came to apply the test which it had propounded it ignored it or substituted a new test in which the word “systematic” became a criterion.

It is obvious that the passage complained of presents some difficulty.  Not only must one form a view as to the meaning of the last sentence upon which reliance is particularly placed, but also, in consequence, the ungrammatical third sentence which raises some possible ambiguity.  Counsel for the Minister submitted that the words:  “I do not consider these treatment [sic] to be so serious as to amount to persecution in the sense of the Convention”, should be understood as meaning that the learned Tribunal member did not consider the worst treatment to which the previous sentence referred, that is to say, slapping and waiting, to constitute persecution in the sense that word is used in the Convention.  There is no doubt that, if that is what was meant and without any reference to the last sentence, it would be open to the Tribunal to form that view.

The Applicant submits that when one reads that sentence together with the last sentence at least what the Tribunal member is really saying is that the treatments meted out to the Applicant were not systematic enough as to constitute persecution in the Convention sense.  No doubt, in an ideal world, reasons of tribunals would be clear and unambiguous, thus not giving rise to the sort of submission that is put here.  We do not live in an ideal world.  I am conscious of the difficulties that face tribunals, not only in terms of work load but also in terms of facilities in preparing, as they must, reasons to explain the decisions to which they have come.

No doubt these kinds of difficulties which beset tribunals give rise to the caution expressed in many cases that the Court should not be too critical in approaching judgments of tribunals or attempting to parse and analyse them in order to establish errors of law.  Reasons of a tribunal are not, any more than judgments of a court, statutes to be interpreted strictly.  This having been said, however, clearly the Tribunal has an obligation to attempt to be as clear as possible in the way it expresses not merely the conclusions it has reached but its process of reasoning in reaching them.

There can really be little doubt as I have already indicated that the Tribunal, had it stopped before the last sentence, could not be criticised save perhaps for a grammatical mistake.  While this was not totally conceded by counsel for the Applicant, it was at least tacitly conceded.  The question is whether the last sentence really governs what was said before.  I do not find it easy to assume that the Tribunal had carefully set out the correct test at the outset, then when it sought to apply it, applied some other test.  It is possible as the Applicant submits that it did, but it is not really clear to me that that is what happened. 

On the whole I do not think that the Tribunal was seeking to suggest that a test of system be applied to all acts before persecution was established.  Trying to read the passage complained of fairly, but having regard to what the Tribunal had said earlier, I think what the Tribunal meant to say was that:

(a)                the quality of the treatment afforded to the Applicant, that is to say, he was being slapped or being made to wait, did not itself amount to persecution; and

(b)               the last sentence probably was intended to do no more than to say that the overall treatment meted out to him, looked at as a whole, did not change that position.

It would certainly be more satisfactory that the Tribunal make itself clear than that the Court should have to try to understand what precisely it was that the Tribunal said.  It was submitted for the Applicant that the reasons were so unsatisfactory as not to amount to reasons for decision, thus raising an error of law.  That is not itself a ground dealt with in the application nor for that matter in the written submissions.  Nevertheless, had I thought that the reasons were so lacking in clarity as to amount to a failure on the part of the Tribunal to comply with the obligations it has to give reasons I would no doubt have given, even at this stage, leave to amend.  I do not think that this is the case.  It follows that I am of the view that the Applicant has not made out an error of law which would justify the matter being remitted to the Tribunal. 

The Respondent Minister seeks an order that the Applicant pay his costs.  It is no doubt the practice of the Court in matters of judicial review as, indeed, in other matters that a party who is successful would ordinarily have an order of costs in their favour.  It is possible perhaps to argue that in some cases, at least those that are taken bona fide, and involve judicial review and administrative decision making, that it could be appropriate that no order as to costs be made.

A suggestion to this effect is to be found in a number of judgments of Burchett J.  That is not a view which has at least yet been endorsed by other judges of the Court.  In principle, while having some sympathy for it, I do not really see the difference between judicial review of immigration matters and judicial review of other decisions except perhaps if some special question of construction arises where it is in the interests, of course, of the administration of justice that it be decided. 

The present case is in a slightly different position.  The real problem that found issue between the parties arose out of an ambiguity capable of being found in the Tribunal’s own reasons.  Although at the end of the day the Applicant has failed, there is no suggestion that the application was any way other than bona fide or justified given the difficulty of construction that one might have of what the Tribunal said.  It seems to me to be an unusual case and one where no order as to costs ought to be made.  Accordingly I would, while dismissing the application, make no order as to costs.

Associate:

Dated:              November 1998