FEDERAL COURT OF AUSTRALIA
Migration – application for judicial review of Refugee Review Tribunal decision – refusal to grant protection visa – Libyan citizen’s claim of well-founded fear of persecution for reasons of political opinion – proper approach to findings as to alleged past events – when Tribunal excused from taking into account chance that alleged past events occurred – whether Tribunal required to state what kind of political activity would lead to persecution in Libya.
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Mr A v Minister for Immigration and Multicultural Affairs (unreported, Hely J, Federal Court of Australia, 17 November 1998)
Rajalingam v Minister for Immigration and Multicultural Affairs (unreported, Ryan J, Federal Court of Australia, 14 September 1998)
Uma Chand v Minister for Immigration and Ethnic Affairs (unreported, von Doussa, Moore and Sackville JJ, Federal Court of Australia, 7 November 1997)
Migration Act 1958 (Cth) – ss 430(1), 476(1)(a) & (e)
A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 1053
KATZ J
31 DECEMBER 1998
SYDNEY
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
BETWEEN: |
A Applicant
|
|
AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
|
|
DATE OF ORDER: |
|
|
WHERE MADE: |
minutes of order
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
NEW SOUTH WALES DISTRICT REGISTRY |
NG 1053 of 1998 |
|
BETWEEN: |
A Applicant
|
|
AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
|
|
JUDGE: |
KATZ J |
|
DATE: |
31 DECEMBER 1998 |
|
PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
Section 486 of the Migration
Act 1958 (Cth) (“the Act”) confers on this Court jurisdiction with respect
to “judicially-reviewable decisions”. Among the decisions which are
reviewable by this Court in the exercise of that jurisdiction are decisions of
the Refugee Review Tribunal (“the Tribunal”) (see par 475(1)(b) of the Act).
In this proceeding, review of a decision of the Tribunal is sought.
The decision concerned is one which was made by the Tribunal on 14 September 1998, consequent upon an application for review which had been made to it on 29 April 1998 by Mr A. The Tribunal’s decision affirmed an earlier decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the delegate” and “the Minister” respectively) on 23 April 1998, consequent upon an application for a protection visa which had been made to the Minister by Mr A on 23 March 1998. The delegate’s decision on that application had been one to refuse to grant it.
Protection visas are dealt with in s 36 of the Act, which provides as follows,
“36(1) There is a class of visas to be known as protection visas.
- 2 -
(2) A criterion for a protection visa is that the applicant for a visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”
(The Refugees Convention referred to in subs 36(2) is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, while the Refugees Protocol referred to is the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see the relevant definitions in subs 5(1) of the Act. I note also that criteria for a protection visa additional to that in subs 36(2) appear in Sch 2 to the Migration Regulations, under the heading, “Subclass 866—Protection”. All such criteria apply to decision-making by the Tribunal, just as much as they do to decision-making by the Minister: see subs 415(1) of the Act.)
Australia has protection obligations to a non-citizen in Australia if that non-citizen is a refugee within the meaning of par 1A(2) of the Refugees Convention as amended by the Refugees Protocol. That paragraph refers (relevantly) to a person who is outside the country of the person’s nationality owing to well-founded fear of being persecuted for reasons of political opinion and who, owing to such fear, is unwilling to avail himself of the protection of that country.
Mr A, a Libyan national, claimed before the Tribunal to be outside Libya owing to well-founded fear of being persecuted for reasons of political opinion and therefore to be unwilling to avail himself of Libyan protection. That claim was, as has already been implied by my statement that the Tribunal affirmed the decision of the delegate to refuse to grant to Mr A a protection visa, rejected by the Tribunal.
Mr A sought review of the Tribunal’s decision upon two grounds.
The first of those grounds was that the Tribunal had erred in law (see par 476(1)(e) of the Act), in effect, by failing, when deciding whether Mr A’s fear of being persecuted for reasons of political opinion was well-founded, to proceed as it was required to do by reason of the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo
- 3 -
(1997) 144 ALR 567.
It appears to me to be convenient, before discussing how the Tribunal did proceed when deciding that Mr A’s fear of being persecuted for reasons of political opinion was not well-founded, to discuss how Guo’s Case relevantly required it to proceed, as appears both from the reasons for judgment in that case itself and from reasons for judgment in subsequent cases in this Court referring to the decision in Guo’s Case.
In Guo’s Case, the High Court unanimously reversed a decision of a Full Court of this Court (see Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 (Beaumont, Einfeld and Foster JJ)). Two sets of reasons for judgment were delivered in the High Court, one by Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ jointly, and one by Kirby J alone. I will refer herein only to the joint reasons for judgment, Kirby J having said nothing, as I read his Honour’s reasons for judgment, which bears directly on the matter in the joint reasons for judgment on which it is necessary to concentrate for present purposes.
In the joint reasons for judgment, their Honours began (relevantly) by discussing three of the key requirements to be satisfied before a claimant for refugee status can qualify as a refugee within the meaning of par 1A(2) of the Refugees Convention as amended by the Refugees Protocol.
They first discussed (at 575) the subjective requirement that a claimant for refugee status must fear “persecution”.
(Paragraph 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not actually use the word “persecution”; instead, it uses the phrase “being persecuted”. However, nothing turns on that difference in terminology. The word is intended to convey the same idea as does the phrase in the present context, as is apparent from par 1C(4) of the Refugees Convention, which speaks of the Convention’s ceasing to apply to a person falling under the terms of Section A if he has voluntarily re-established himself in the country which he left or outside which he remained owing to fear (not, “of being persecuted”, but) “of
- 4 -
persecution”.)
They next discussed (at 575-76) the subjective requirement that the claimant must fear such persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion”, or, as their Honours described it (and as it is usually described), “for a Convention reason”.
Finally, they discussed (at 576-77) the objective requirement that the claimant’s subjective fear of persecution for a Convention reason be “well-founded”.
In dealing with the key requirement of well-foundedness, they referred first to the Court’s own earlier decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and to the statements in that case by Mason CJ (at 389) and by McHugh J (at 429) that a person’s subjective fear of persecution for a Convention reason would be objectively “well-founded”, provided that there was at least a “real chance” that such persecution would occur, even though it was less probable than not that it would occur. They then accepted that a person’s subjective fear of persecution for a Convention reason could be objectively “well-founded”, even though it was less probable than not that such persecution would occur, but cautioned against treating the objective requirement that the claimant’s subjective fear of persecution for a Convention reason be “well-founded” as if it were instead an objective requirement that there be a “real chance” that persecution for a Convention reason will occur. Having issued such caution, they then said (at 577),
“A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.”
No doubt, their Honours intended that, just like the phrase “real chance”, which they accepted could be legitimately used only if used epexegetically of “well-founded”, the phrases in the passage just quoted be used no more than epexegetically of “well-founded”.
- 5 -
Having concluded their discussion of the key requirement of well-foundedness, their Honours then turned to the question whether the Tribunal had dealt properly in the case of Mr Guo with the question whether his fear of persecution for a Convention reason was “well-founded”. Unlike the Full Court of the Federal Court, they considered that the Tribunal had dealt properly with that question. In the course of giving their reasons for so considering, they said a number of things which are particularly relevant for present purposes.
Their Honours said (at 579-80; footnote omitted),
“In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the [T]ribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not ‘differentially at risk for a Convention reason’. Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the [T]ribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
In the present case, Einfeld J was critical of the [T]ribunal for making findings before it evaluated whether there was a real chance of persecution for a Convention reason. Thus, his Honour said:
‘As it appears to me, the [T]ribunal has thus been concerned to make findings and determinations in relation to each piece of evidence. It evaluated the credibility of Mr Guo and employed a continuous weighing-up process. It also engaged in a deductive reasoning process to justify some of its balance of probabilities findings. Clearly great weight was placed upon these findings when considering the ultimate question. Only after it had weighed the evidence and made its findings did the [T]ribunal engage in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well-founded. However, no consideration was given by the [T]ribunal to the possibility that any of its findings were inaccurate, and that there was in fact a possibility that the prior punishment had been Convention-related.’
- 6 -
With respect to his Honour, this criticism of the [T]ribunal's reasons is wrong. For the reasons that we have given, the [T]ribunal was entitled to weigh the material before it and make findings before it engaged ‘in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well-founded’. Moreover, given the strength of some of the Tribunal's findings — for example, ‘the treatment the applicant received on return to the PRC in October 1992 [is] reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials’, ‘the applicant’s illegal departure in 1993 will not result in an imputed political profile’, ‘these matters will not result in persecution to [sic] the applicant for Convention reasons if returned to China’ — the Tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention-based.
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 [T]ribunal 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.
In the present case, however, the [T]ribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the [T]ribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the [T]ribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the [T]ribunal was not then bound to consider whether its findings might be wrong.”
A question arises from the passage just quoted, particularly from that part of the passage which consists of their Honours’ answer to the criticism of the Tribunal’s approach made by Einfeld J in the Full Federal Court.
Were their Honours saying that, unless the Tribunal either: (i) has “no real doubt” as to the correctness of its finding that an event asserted by the claimant for refugee status to have occurred did not occur; or (ii) takes the view that the probability of error in that finding is “insignificant”, then it must, recognising that that finding may be wrong, take into account, when determining well-foundedness, the chance that such event did occur?
- 7 -
(In framing the above question, I have focused on a Tribunal finding that an event asserted by a claimant for refugee status to have occurred did not occur; a materially identical question would arise if the Tribunal finding were instead that an event asserted by a claimant not to have occurred had occurred. What I say hereafter in these reasons, although it will be expressed in relation to a Tribunal finding that an ev ent asserted by a claimant to have occurred did not occur, should be taken to apply as well to the situation in which the Tribunal finds instead that an event asserted by a claimant not to have occurred has occurred.)
In cases subsequent to Guo’s Case, Judges of this Court have considered the question which I have posed above. I mention below in chronological order three such cases.
First in time and most importantly for present purposes, because a decision of a Full Court of this Court, is Uma Chand v Minister for Immigration and Ethnic Affairs (von Doussa, Moore and Sackville JJ, unreported, 7 November 1997), in which the Court said (at 12),
“If the RRT, in its evaluation of the evidence, finds that a fact alleged by a claimant in support of his or her case did not happen, that rejected allegation of fact can provide no substantial basis for speculating that a well founded fear exists.
This statement of general principle requires qualification where, although the RRT considers that a past fact asserted in support of the claim for refugee status probably did not happen, a finding to that effect cannot be made with the degree of confidence which justifies putting aside the allegation as being without substance.”
Next, in Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635, Merkel J, speaking of the “real chance” test, said (at 644), “The correct application of that test may in some, but not other, circumstances make it appropriate for the [T]ribunal to consider the possibility that any of its findings as to past events were inaccurate”. Later, his Honour said (at 650),
“The High Court in Guo rejected the approach of Einfeld J. In particular the [C]ourt made it clear that the ‘What if I am wrong?’ approach to fact finding:
- 8 -
· is relevant to facts found on the basis that they are ‘slightly more probable than not’;
· is neither rational or necessary when the RRT has no real doubt that its findings are correct;
· has a varying applicability in cases lying between the two situations stipulated above.”
Finally, in Mr A v Minister for Immigration and Multicultural Affairs (Federal Court, unreported, 17 November 1998), Hely J referred (at 9) to a submission which had been made to him that the “RRT erred in failing to address the ‘what if I am wrong’ question”.
His Honour began dealing with that submission by saying that there was no legal rule that in all cases the Tribunal must consider whether findings which it has made might be wrong. Such a rule would be inconsistent, his Honour said, with what had been said in Guo, Uma Chand and Emiantor. His Honour then continued (at 10-11),
“In Thanh Phat Ma v Billings and Anor (1996) 142 ALR 158, Drummond J addressed the ‘what if I am wrong’ test and observed:
‘All I think Kirby J was concerned to explain [in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293] was that, unless the decision maker can dismiss as unfounded factual assertions made by the applicant, the decision maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution even though no one circumstance, considered by itself, is sufficient to raise that prospect.’
I think there is force in this observation. Otherwise, if the Tribunal finds that something which is alleged to have happened did not, and then has to go on and consider what the position would be if it was wrong in its finding in that respect, then the whole process of fact finding would be futile. No doubt there may be cases where, either in relation to an individual matter, or in relation to a number of matters, the Tribunal may be unsure as to whether or not that matter, or those matters occurred, and the very fact of that uncertainty may assist the Tribunal in coming to a conclusion as to whether it is satisfied that there is a real chance of persecution in the sense referred to in the authorities.”
- 9 -
Having now mentioned three cases subsequent to Guo’s Case in which Judges of this Court have considered the question which I have posed above, I should state the view which I take of the matter. It is that those Justices of the High Court who gave their reasons for judgment jointly in Guo’s Case were indeed saying that, unless the Tribunal either: (i) has “no real doubt” as to the correctness of its finding that an event asserted by the claimant for refugee status to have occurred did not occur; or (ii) takes the view that the probability of error in that finding is “insignificant”, then it must, recognising that that finding may be wrong, take into account, when determining the well-foundedness of a refugee claimant’s subjective fear of persecution for a Convention reason, the chance that such event did occur.
It follows that I respectfully disagree to some extent at least with what was said by Hely J in Mr A and may also do so with what was said by Merkel J in Emiantor, depending upon what Merkel J meant in the passage from his reasons for judgment which I have quoted above.
First, as to Emiantor, I accept that the High Court in Guo did make it clear that the “What if I am wrong?” approach is relevant to facts found on the basis that they are “slightly more probable than not” and is not relevant when the Tribunal has no real doubt that its findings are correct. However, if, by saying that the High Court had also made it clear that the “What if I am wrong?” approach “has a varying applicability in cases lying between the two situations” just mentioned, Merkel J was saying (as it appears to me that he was) that, in cases lying between the two situations, the Tribunal was sometimes bound to take into account the chance that the alleged past event did occur and sometimes not, then I am unable to accept that the High Court did make that clear.
On the contrary, as I have already said in effect, I read the High Court’s reasons for judgment as requiring either the absence of any real doubt on the part of the Tribunal that its finding as to the past was correct or the existence in the Tribunal of the view that the probability of error in its finding was insignificant as a necessary pre-condition to the Tribunal’s being excused from taking into account, when determining whether there is a well-founded fear of persecution, the chance that the alleged past event has occurred.
- 10 -
I consider that the Full Federal Court’s decision in Uma Chand, to which Merkel J did not refer in Emiantor, supports my reading of Guo.
In Uma Chand, rather than speaking, as the High Court had in Guo, of the Tribunal’s having “no real doubt that its findings … as to the past … were correct” or of the Tribunal’s having “the view that the probability of error in its findings was insignificant”, the Full Federal Court spoke instead of the Tribunal’s making a finding that an alleged past event did not occur “with the degree of confidence which justifies putting aside the allegation as being without substance”. That difference in phraseology appears to me to be unimportant. What is important is that, as I read the Full Federal Court’s reasons for judgment, their Honours were saying that, if a finding as to the non-existence of an alleged past event cannot be made with the degree of confidence to which they had referred, then the Tribunal must not put aside the allegation, but must take into account, when determining well-foundedness, the chance that the alleged past event did occur. It must do so, because “that rejected allegation of fact can provide” a “substantial basis for speculating that a well founded fear exists”.
Next, as to Mr A, in so far as Hely J relied upon what Merkel J had said in Emiantor, I need not repeat what I have said above about the latter case. In so far as Hely J relied upon what Drummond J had said in Thanh Phat Ma, I draw attention to the fact that that case had been decided before the High Court decided Guo’s Case and is therefore not as helpful as it might otherwise have been in understanding what their Honours (who did not include Kirby J) had in mind in the joint reasons for judgment in that case.
Further, while, just as Hely J obviously does, I have difficulty in imagining the Tribunal’s being able to engage satisfactorily in the mental gymnastics in which Guo’s Case appears to me to require it to engage when it has rejected a factual assertion as to a past event, but not with that degree of confidence which would permit it to ignore that assertion on the well-foundedness issue, I cannot agree with his Honour that engaging in that process by the Tribunal would make “the whole process of fact finding … futile”.
In the result, whatever I might have thought in the absence of binding authority of the process in which Guo’s Case appears to me to require the Tribunal to engage when it has rejected a
- 11 -
factual assertion as to a past event, but not with that degree of confidence which would permit it to ignore that assertion on the well-foundedness issue, having the conviction that that is what the High Court has required of the Tribunal, I have no choice but to consider whether it was necessary to be engaged in by the Tribunal in the present case and, if so, whether it was.
Accepting that that is so, a question arises as to how one is to determine whether the Tribunal was required to engage in that process.
That question was considered by Ryan J in Rajalingam v Minister for Immigration and Multicultural Affairs (Federal Court, unreported, 14 September 1998). In that case, Ryan J, having, among other things, quoted, as I have done above, from the joint reasons for judgment in Guo’s Case and in Uma Chand’s Case, identified certain past matters upon which the Tribunal had been invited by Rajalingam to base its prediction as to the future in assessing whether there was a real chance of his being persecuted. His Honour then said (at 17-19),
“The Tribunal reached a conclusion adverse to the applicant on each of those issues. However, it is not possible to infer from its reasons … with what degree of confidence it did so.
The reasons advanced for the rejection of the applicant’s assertions are not objectively cogent enough to impute to the Tribunal a view that the probability of error in the rejection of each of them was insignificant.
… [T]he Tribunal did not … indicate … in its reasons … why, or with what degree of confidence, it rejected the applicant’s explanation [viz, of a particular matter]. I do not regard the reference to [another particular matter] as supplying a basis from which to infer that the Tribunal had the requisite degree of confidence in rejecting each of the facts which I have identified. Moreover, I do not consider [a certain hypothesis of the Tribunal’s] to be sufficiently compelling to sustain the degree of confidence that it could not have been wrong which is mandated by the principles enunciated in Guo ….
In the result, particularly having regard to the absence from its reasons of any reference to that test, I am not persuaded that the Tribunal asked itself ‘What if I am wrong?’ or that it was so confident in its rejection of each of the facts critically relied on by the applicant that it considered it unnecessary to ask
- 12 -
that question. The failure which I have imputed to the Tribunal amounts to an error of law in the sense in which that expression is used in s 476(1)(e) of the Migration Act.”
Thus Ryan J, finding in the Tribunal’s statement of findings and reasons in that case no reference in terms to the “What if I am wrong?” test and being unable to infer from the language actually used by the Tribunal that it held the view that the probability of error in its rejectionof critical assertions of fact by Rajalingam was insignificant, then proceeded to ask himself whether the reasons given by the Tribunal for rejecting those assertions were “objectively cogent enough” to permit the Court “to impute to the Tribunal a view that the probability of error in the rejection of each of them was insignificant”.
In my view, a search by the Court for “objective cogen[cy]” of the sort referred to by his Honour gives rise to a real risk that the Court will ultimately be substituting its own view of the facts of the matter for that of the Tribunal and thus travelling beyond its remit under the Act. Such an inquiry should, I consider, therefore not be undertaken; instead, if the Tribunal has not asked itself “What if I am wrong?”, the Court, in order to determine whether it should have done so, should merely limit itself to the second inquiry made by Ryan J, namely, whether one can infer from the language actually used by the Tribunal that it held the view that the probability of error in its rejectionof critical assertions of fact by the refugee claimant was insignificant.
Of course, that inquiry will be undertaken in the light of what Brennan CJ and Toohey, McHugh and Gummow JJ said in Wu’s Case at 272. Their Honours there said that two propositions were well settled: first, that a court exercising a supervisory jurisdiction should not be concerned with looseness in the language or unhappy phrasing of the reasons of an administrative decision-maker; and, secondly, that the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. Their Honours then said (footnote omitted) that those well settled propositions,
“… recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from
- 13 -
the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
It appears to me that one sees in Guo itself the High Court taking the approach to the Tribunal’s statement of findings and reasons which its remarks in Wu required, although without making express reference to the point.
To repeat some material which I have already set out above, in Guo, the High Court said that, in the circumstances of that case, the Tribunal “was not bound to consider the possibility that its findings were inaccurate”. That was said to be because of “the strength of some of the [T]ribunal’s findings”. The three findings which were said to exemplify the strength requisite to excuse the Tribunal from considering the possibility that its findings were inaccurate merely took the following form: “the treatment the applicant received on return to the PRC in October 1992 [is] reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials”; “the applicant’s illegal departure in 1993 will not result in an imputed political profile”; and “these matters will not result in persecution to [sic] the applicant for Convention reasons if returned to China”.
If the High Court considered the form in which those three findings were expressed to be sufficiently strong to excuse the Tribunal from considering the possibility that its findings were inaccurate, three things are apparent: first, that that Court does not require the Tribunal to have used the language of an absence of any real doubt as to the correctness of a finding (or equivalent language) before concluding that it had no such doubt; secondly, that that Court considers that the strength of the Tribunal’s finding on one factual issue may excuse it from any obligation to consider whether there is possible inaccuracy, not only in that finding, but also in its findings on other factual issues; and, thirdly, that this Court should be particularly cautious in inferring from the language used by the Tribunal in its statement of findings and reasons that the Tribunal either had some real doubt that its findings were correct or took the view that the probability of error in its findings was not insignificant.
- 14 -
In light of all of the above, I turn now to the specifics of Mr A’s claim for refugee status and to the way in which the Tribunal dealt with them, in order to determine whether, in dealing with them, the Tribunal proceeded as I understand it was required to do by reason of Guo’s Case.
Of the assertions of fact made by Mr A in support of his claim for refugee status, it appears to me to be necessary to make reference to the following ones, in order to make explicable what comes hereafter in these reasons:
(a) Mr A was, between about 1990 and 1995, while living in the city of Benghazi in Libya, a member of a small, clandestine, group of young men, which was opposed to the policies of the Libyan government (“the group”);
(b) the function of the group was merely political education, that of the group members themselves and of other trusted friends;
(c) as well as communicating their ideas among themselves and to other trusted friends, the members of the group were also in touch with two university academics, one of whom, Dr Jaballa Al Obeidi, had full knowledge of the group’s activities;
(d) in March of 1995, Dr Al Obeidi gave a public lecture on the topic of freedom of expression, which lecture was given at the university at which Mr A was a student and was attended by, among others, Mr A and other members of the group;
(e) the university’s revolutionary committee afterwards questioned Mr A about his attendance at the lecture and he was expelled from the university in consequence;
(f) the existence of the group became known to the security forces either:
(i) through Dr Al Obeidi, who had been detained by the university’s revolutionary committee in consequence of his lecture; or
- 15 -
(ii) through other members of the group, who, having attended Dr Al Obeidi’s lecture, had, like Mr A,
afterwards been questioned as a result of that attendance;
(g) in late September and October of 1995, the security forces attempted to detain members of the group other than Mr A, in some cases, successfully;
(h) subsequently, in October of 1995, the security forces began to seek Mr A out, unsuccessfully raiding his family home and the homes of his brothers in an attempt to locate him;
(i) when Mr A was not located, his father and brothers were detained and only released after undertaking to hand him over to the security forces, if possible;
(j) he went into hiding in Libya to avoid the security forces and then left the country in November of 1995;
(k) in order to leave the country, it was necessary for him to use a friend’s passport, because using his own could have led to his detection; and
(l) after he left the country, his fiancée’s passport was seized, thereby preventing her from leaving the country lawfully.
The Tribunal’s statement of findings and reasons in respect of Mr A’s application to it took the usual form for such statements by it, being divided into various parts, each with a heading. In that part of its statement headed “Findings and Reasons”, the Tribunal set out its findings and reasons with respect to those assertions of fact by Mr A which I have summarised above.
It began that part of its statement by referring to a three stage process in which it proposed to engage (numbering added),
- 16 -
“I will now [1] outline my concerns about aspects of the applicant’s evidence, [2] set out the claims which I have accepted and [3] consider whether these give rise to a well-founded fear of persecution for a Convention reason.”
The Tribunal then engaged in the first of the three stages of the process which it had foreshadowed, beginning by saying (numbering added),
“There are some aspects of the applicant’s evidence and what he claims these suggest could happen to him if he were to return to Libya which I have considered carefully, including in the light of the independent evidence about Libya which I have read, but [1] which I have not accepted or [2] which I have some doubt are accurate.”
I will return below to the Tribunal’s outline of its concerns about aspects of Mr A’s factual assertions, but, before doing so, will quote what the Tribunal had to say when setting out those of Mr A’s claims which it had accepted and considering whether they gave rise to well-founded fear of persecution for a Convention reason, in other words, what the Tribunal had to say at the second and third of the three stages of the process which it had foreshadowed:
“The applicant’s evidence which I have accepted can be summarised as follows: he does not support the existing political regime in Libya led by Colonel Gaddafi; … he, with six friends, discussed among themselves concerns with the Libyan system of government and ideas for reform and from around 1990 and [sic] wrote about these to give to others to read and talk about; … he and other members of his circle associated with two academics who shared their concerns about the political climate in Libya; he attended a lecture in March 1995 about freedom of speech and was dismissed from the university as a result; the passports belonging to him and family members were retained after they returned from Saudi Arabia in March 1995 and he was questioned when he attempted to retrieve them[,] which he was eventually able to do; ... he left Libya in November 1995….
On the applicant’s own evidence, much of what he and his friends did was done in secret and included few other people (the academics and others who members of the group thought might share their opinions) and … took place with considerable caution. From the material before me, it appears to have been not more than a circle of friends who shared common perspectives. I consider that it is possible that officials or people connected to a
- 17 -
revolutionary committee may have heard that the group of friends discussed and wrote short accounts about what was wrong with the Libyan government and that they could have been picked up as part of the response to the violent conflict between the security forces and Islamist opposition groups which occurred during the period. But I do not consider that the character of what the applicant and his friends had done would have led to the arrest and detention of all of them or to what he claims happened to his father and brothers or to the applicant being on a wanted list for a long period. The applicant made no claims that he was involved with any other people, groups or organisations advocating reform in Libya or that he ever took part in larger scale protest activities. What he had done was of a low profile and was not in any way related to the main focus of the authorities[’] attention at the time[,] which was the suppression of Islamist opposition groups.
… The applicant’s adviser has submitted that he [viz, Mr A] was able to avoid harm because he was able to leave the country: had he not done so, then he would have been arrested and detained as he claims other members of his circle were. Whether there is a real chance that this could occur because of the applicant’s political activities if he were to return to Libya is the central question for the Tribunal to address.
I have no doubt that the applicant does not support the current political regime in Libya, that he could be harassed by officials or by members of revolutionary committees if he were to return, including being questioned[,] as he has been in the past…. However, I am not satisfied that the applicant’s political opinion and the activities he has undertaken in the expression of this opinion would be factors which would lead to him coming to the attention of the authorities if he were to return to Libya or to him being on a list of wanted persons. The chance that he would be singled out for harm because of how he expressed his political beliefs seems to me to be a remote one unless he became considerably more active upon return than he was when he was living there and there is no evidence before me which would support a conclusion that he would do so. The activities he has described as political seem to me to amount to a group of good friends sharing their thoughts and ideas about politics and, on the evidence provided by his adviser on his behalf, such discussion is common in Libya. I accept that there is strong suppression of political opinion in Libya and very limited freedom of expression, that the role of revolutionary committees can lead to uneven and capricious exercise of control and power and that much of the government’s administration is chaotic but I am not able to accept that such low level and discreet activity as the applicant has undertaken would lead to participants facing serious harm of a kind which could be described as persecution[,] especially in the light of information that it is extremist Islamic groups which are the main targets of the authorities’ actions to suppress dissent.
…
- 18 -
I have no reason to doubt the sincerity of the applicant’s belief that the Libyan regime is bad and independent information supports what he has said about it.. Nor do I doubt that he is a sincere and good person.… But … I have found that the nature and scope of what the applicant claims to have done in the past and what followed is not of a kind which leads me to conclude that he would be singled out for harm because of his political opinion if he were to return to Libya.
…
In view of the foregoing, I find that there is only a remote chance that the applicant would face harm amounting to persecution because of his political opinion and the activities he has undertaken in the expression of his opinion … if he were to return to Libya and that his fear is not well-founded.
I return now to the Tribunal’s outline of its concerns about aspects of Mr A’s factual assertions in support of his claim for refugee status, in particular, its concerns about his factual assertions regarding: (i) the detention of members of the group other than himself; (ii) the detention of his relatives; (iii) the seizure of his fiancée’s passport; and (iv) the necessity for him to use a friend’s passport to leave Libya. I focus on the Tribunal’s treatment of his factual assertions about those four matters because they are the particular factual assertions the treatment of which by the Tribunal was said in the submissions on his behalf to demonstrate a failure by the Tribunal to proceed in accordance with Guo’s Case.
(It may be as well to mention here that, due, as I understand it, to a misunderstanding between Mr A and his counsel, the latter was not ready to argue the matter on the date which had been fixed for its oral hearing. As a fresh date for an oral hearing would have been some time in the future and as Mr A had already been in custody for some time, I was asked in the circumstances to “hear” the matter in writing only, a course which was not opposed by the Minister and to which I acceded. When, therefore, I refer in these reasons to submissions made on Mr A’s behalf, I am referring to submissions made in writing only.)
During the course of that part of its statement of findings and reasons in which the Tribunal outlined its concerns about aspects of Mr A’s factual assertions, the Tribunal said (numbering added),
- 19 -
“[1] The applicant claims that other members of his group were arrested (apart from two who were not in Libya at the time). He has submitted that he believes it probable (but is not certain) that it was the investigations of people who had attended Dr Al Obeidi’s lecture in March 1995 which led the authorities to work out who were members of the group and to the arrests in September and October 1995, some six months later. I consider that it is possible that the young men may have been arrested as he has claimed, but their activities, if they were the same as the applicant has described his to me, would in my view have been unlikely to lead to their detention for an extended period. Independent information ... is that the major crackdown in Benghazi which occurred when the applicant claims the arrests took place was a result of violent conflict between armed extremist Islamic forces and the Libyan security authorities. The applicant has said that he had nothing to do with the Islamic opposition in Libya. While I can accept that in circumstances where many people are being arrested, the applicant’s friends may have been picked up and while I note that independent information does not say that the authorities were only concerned with dissent by Islamist groups, I am not satisfied that the character of what the applicant and his friends had done, which on his own evidence had ceased soon after the lecture in March 1995, would have led to their arrests six months later as he has claimed[,] unless some of them were involved in Islamic extremism or in more intensive political activities and there is no evidence before me that this was so. The applicant has said that he had no such involvement.
[2] The applicant has claimed that his father was arrested and detained for a week and his three brothers also arrested and each detained for three months. He claims that these arrests and detentions were because the authorities could not find the applicant and has said that each was required to give an undertaking to hand the applicant over to the authorities if he returned. Independent information is that this type of detention can occur in order to pressure a wanted person to give themselves up to the authorities but I am not satisfied from the evidence before me that the character of the applicant’s political activities would have been the factor which led to the arrests and detentions of members of his family as he has claimed. I note that if what the applicant has said happened to his father and brothers at the hands of the authorities is true, then it is in my view far worse than anything which had been experienced by the applicant, whose personal encounters with the authorities (other than routine dealings which had allowed him to leave the country a number of times, renew his passport, obtain a licence to use a water source etc) had been quite limited (episodes of questioning on teaching the Green Book while teaching in 1993, questioning and dismissal from university in March 1995, questioning on two occasions in 1995 in connection with retrieving his passport).
- 20 -
(I interpolate here that “the Green Book” just referred to is said elsewhere in the Tribunal’s statement of findings and reasons to be a book which describes the policies and ideology of Colonel Gaddafi, the Libyan ruler.)
[3] Nor am I satisfied from the evidence before me that it was the applicant’s political activities and the authorities’ inability to find him because of these that led to his fiancé’s [sic] passport being seized: if her passport was taken, I am not satisfied that it was because of the authorities’ concern to track down the applicant because of his activities[,] which do not seem to me to be of a kind which would have led the authorities to take action to stop his fiancé [sic] from leaving the country.
[4] I am also not convinced about the applicant’s evidence that it was necessary for him to leave Libya on another person’s passport because of what he had been involved in[,] if the sum of his activities were as he has explained them. His passport had been returned to him when he went to Tripoli (where he claims he was again questioned) in early October 1995, after the arrest of one of his group, and was renewed on the day after in Benghazi, only two days before he claims that his house was raided. Members of the group [in which] the applicant claims to have been involved were already being arrested (he claims that the first arrest of a member of the group happened in late September) and I therefore consider that getting his passport back and having it renewed may not have been straightforward if he was in fact being sought by the authorities. I understand what the applicant said about the chaotic state of administration but consider that his account of being able to retrieve his passport in Tripoli and renew it in Benghazi at the time when the arrests of his friends were underway does lend weight to a view that he was not of interest to the authorities. I am not satisfied that he would at that time or since have been on a wanted list because of the political activities he has described.”
Having now set out all that appears to me to be necessary of the Tribunal’s statement of findings and reasons for present purposes, I turn to the respects in which it was submitted on behalf of Mr A that the Tribunal had erred in law, in effect, by failing, when deciding whether Mr A’s fear of being persecuted for reasons of political opinion was well-founded, to proceed as it was required to do by reason of Guo. As I have already mentioned, that submission was particularly based upon the Tribunal’s treatment of Mr A’s factual assertions relating to: (i) the detention of members of the group other than himself; (ii) the detention of his relatives; (iii) the seizure of his fiancée’s passport; and (iv) the necessity for him to use a friend’s passport to leave Libya.
- 21 -
Counsel for Mr A submitted, in effect, that, in determining whether Mr A’s fear of being persecuted was well-founded, the Tribunal had rejected his factual assertions on the above four matters, but had failed to take into account the chance that those factual assertions were true, nonetheless though its rejection of those factual assertions had not been with the degree of confidence which would have permitted the Tribunal to ignore them on the well-foundedness issue. The absence of the requisite degree of confidence in the Tribunal in the rejection of those factual assertions was said to be apparent by reason both of the language used by it and of the language not used by it in dealing with them.
To deal first with the language not used by the Tribunal, it was said that, in rejecting Mr A’s factual assertions on the above four matters, the Tribunal did not say that the chance of their being accurate was “remote” or “insubstantial” or that they were “far-fetched”. It therefore followed, as I understood the argument, that it did not appear that the Tribunal’s rejection of Mr A’s factual assertions on the above four matters had been sufficiently confident to permit the Tribunal to ignore them on the well-foundedness issue.
The reason for drawing particular attention to the absence of the use by the Tribunal of the words “remote”, “insubstantial” and “far-fetched” was that they had been used by the High Court in Chan's Case, already mentioned. “[R]emote” had been usedby Mason CJ and by Dawson and Toohey JJ (at 389, 398 and 407 respectively), “insubstantial” had been used by Toohey J (at 407) and “far-fetched” had been used by McHugh J (at 429).
I reject the submission that the failure by the Tribunal to use the words “remote”, “insubstantial” or “far-fetched” when dealing with the four factual assertions focused upon by Mr A’s counsel bespeaks a failure by it to proceed as required in Guo’s Case.
The particular words not used by the Tribunal in the present matter had been used in Chan, as counsel for Mr A acknowledged, not when discussing how the Tribunal should deal with a refugee claimant’s factual assertions as to past events, but when discussing how the Tribunal should determine whether a chance of persecution in the future was “real”. Such a chance was said not to be “real” if it was “remote” or “insubstantial” or “far-fetched”.
- 22 -
More significant, however, than the fact that the words had been used in Chan in a context different from the present is the fact that the failure by the Tribunal to use those (or similar) words in a context similar to the present in the later case of Guo did not lead the High Court to conclude that the Tribunal had gone astray when dealing with Guo’s factual assertions as to past events. I therefore see no reason to conclude from the Tribunal’s failure to use them in the present matter that it has gone astray.
I turn now to the submission that the language used by the Tribunal in the present matter made apparent the absence of the degree of confidence in the Tribunal in the rejection of Mr A’s factual assertions as to the four matters requisite to permit it to ignore those factual assertions on the well-foundedness issue.
I have already set out in full above what the Tribunal had to say about each of those four factual assertions during the course of that part of its statement of findings and reasons in which it outlined its concerns about aspects of Mr A’s factual assertions, but it may be best to summarise now the Tribunal’s treatment of them in order the better to deal with the present submission.
First, as to the detention of members of the group other than Mr A.
The Tribunal “consider[ed] that it [was] possible that the young men [who were other members of the group] may have been arrested” in September and October of 1995, as Mr A had claimed. After all, said the Tribunal, many people were being arrested in Benghazi at the relevant time, as a result of violent conflict between armed extremist Islamic forces and the Libyan security forces. However, said the Tribunal, “While I can accept that in circumstances where many people are being arrested, the applicant’s friends may have been picked up …, I am not satisfied that the character of what the applicant and his friends had done [as members of the group]…would have led to their arrests…”
Next, as to the detention of his relatives.
- 23 -
The Tribunal appears at least to have accepted as a possibility that the detention occurred, “but”, it said, “I am not satisfied … that the character of the applicant’s political activities would have been the factor which led to the arrests and detentions of members of his family as he has claimed”.
Next, as to the seizure of his fiancée’s passport.
The Tribunal appears to have accepted at least as a possibility that the seizure occurred, but, it said, “I am not satisfied that” “if her passport was taken” “it was because of the authorities’ concern to track down the applicant because of his activities[,] which do not seem to me to be of a kind which would have led the authorities” to seize the passport.
Finally, as to the necessity for Mr A to use a friend’s passport to leave Libya.
The Tribunal said that it was “not convinced” that there was such a necessity because of his membership of the group. The Tribunal was “not satisfied that he would at that time … have been on a wanted list because of the political activities he has described”. The Tribunal noted in that connection that the authorities, after having held his passport for some time, had, in October of 1995, returned it to him and then renewed it. About those two events, it said, “I … consider that his account of being able to retrieve his passport … and renew it … at the time when the arrests of his friends were underway does lend weight to a view that he was not of interest to the authorities.”
In connection with the Tribunal’s treatment of each of the above four matters, counsel for Mr A focused on its use of such words, when stating its conclusions, as “not satisfied” and “not convinced”. It was said that the use of such language demonstrated that the Tribunal had not attained the level of satisfaction that each of Mr A’s factual assertions was incorrect which would have permitted it to ignore those factual assertions when deciding the well-foundedness issue.
I reject the submission that the use by the Tribunal of such words as “not satisfied” and “not convinced” when dealing with the factual assertions as to the four matters focused upon by
- 24 -
Mr A’s counsel bespeaks a failure in it to proceed as required in Guo’s Case.
I should begin explaining my reasons for doing so by drawing attention to the submission made on Mr A’s behalf that the Tribunal had rejected his factual assertions about the four matters.
That submission requires some qualification. As to Mr A’s factual assertions about three of the four matters, namely, detention of other members of the group, detention of his relatives and seizure of his fiancée’s passport, the Tribunal did not reject his assertion that those events had occurred. As I read the Tribunal’s reasons, it accepted the possibility that each of those events had occurred. Where it parted company with Mr A, however, was in ascribing to each of those events, assuming they had occurred, the cause which Mr A ascribed to them, namely, the attitude of the security authorities to the activities of the group. It was as to that matter of causation that it rejected Mr A’s factual assertions; it was “not satisfied” that the attitude of the security authorities to those activities had caused those events, assuming they had occurred.
Leaving that matter aside, however, I conclude from the structure of the Tribunal’s statement of findings and reasons that it did reject Mr A’s factual assertions on the four matters with the degree of confidence requisite to permit it to ignore them on the well-foundedness issue.
I have referred earlier in these reasons to the structure of the Tribunal’s statement of findings and reasons, but I now do so again for the purpose of dealing with the present submission.
Under the heading “Findings and Reasons”, the Tribunal referred at the outset to a three stage process in which it proposed to engage, the first stage of which was outlining its concerns about aspects of Mr A’s factual assertions. It then launched into that first stage, separating out into two classes those factual assertions of Mr A’s about which it had concerns. On the one hand, there were those “which I have some doubt are accurate”, while, on the other hand, there were those “which I have not accepted”.
- 25 -
Reading the Tribunal’s statement of findings and reasons as Wu’s Case requires me to do, I understand the Tribunal to be saying of Mr A’s factual assertions in its second class, “These are not assertions as to the accuracy of which I have some doubt, a doubt in part only, like those in my first class; these are assertions as to the accuracy of which I have a doubt which is total. For that reason, I do not accept them.”
The Tribunal then began to deal individually with those factual assertions of Mr A’s about which it had concerns.
It dealt first with Mr A’s assertions about the giving of the lecture by Dr Al Obeidi in March of 1995, concluding its discussion as follows,
“[W]hile I consider that there is some doubt about whether the lecture occurred as the applicant has described it, I am prepared to accept that it did for the purpose of considering his claims under the Refugee Convention.”
Next, the Tribunal dealt with Mr A’s assertions about what had happened to him as a result of his attendance at the lecture. As I have already mentioned, Mr A asserted before the Tribunal that he had been questioned about that attendance and expelled from the university in consequence. Earlier, however, he had asserted that he had not been expelled. Dealing with that change of front by Mr A, the Tribunal said,
“[I]n my view the change in his evidence casts doubt over whether his later claim in relation to his suspension or dismissal is accurate. Nevertheless, for present purposes I am prepared to accept that he was required to report for questioning and that he was told in March 1995 that he could not continue his studies.”
It is apparent to me from the Tribunal’s treatment of the two matters just referred to that they fell into the first of the Tribunal’s two classes; they were assertions as to the accuracy of which the Tribunal had some doubt.
On the other hand, it is apparent to me that the four factual assertions on which Mr A’s counsel focused in making his submissions before me (the Tribunal’s treatment of which I
- 26 -
have quoted earlier in these reasons) fell into the Tribunal’s second class; they were assertions which (in the relevant respect) the Tribunal did not accept, because its doubt as to their accuracy was total.
In those circumstances and regardless of what one might have inferred if the language complained of on Mr A’s behalf had been the sole material on which to form a view, I conclude from the Tribunal’s statement of findings and reasons as a whole that it did proceed as required by Guo’s Case. Given its apparent confidence in its conclusions, it was entitled to ignore, on the well-foundedness issue, both the chance that the security authorities had, because of the group’s activities, detained persons who were members of it, detained Mr A’s relatives and seized Mr A’s fiancée’s passport and the chance that, because of the group’s activities, it had been necessary for Mr A to leave Libya on a friend’s passport in order to avoid detection.
I turn now to the second of the two grounds upon which Mr A sought review of the Tribunal’s decision.
That ground was that the Tribunal had failed to observe a procedure required by the Act to be observed in connection with the making of its decision. (That ground of review is set out in par 476(1)(a) of the Act.) The procedure alleged to be required by the Act to be observed in connection with the making by the Tribunal of its decision, but not observed by the Tribunal, is that in subs 430(1) of the Act. That procedure is the preparation by the Tribunal of a written statement, where it makes its decision on a review, which sets out its decision on the review, the reasons for the decision and the findings on any material questions of fact and which also refers to the material on which the findings of fact were based.
As particularised, what was complained of under this ground was as follows:
“The Tribunal’s decision turned, in part, on its finding as to the level and type of political activity that might lead to persecution in Libya. It erred by failing to set out that finding and by failing to refer to the evidence on which it was based and by not revealing the reasoning process that led to the finding.”
- 27 -
In effect, what is being complained of under this ground is the Tribunal’s failure to give an advisory opinion. Having concluded that those activities of Mr A as part of the group which it found to have occurred did not give rise to a fear in him of being persecuted which was a well-founded fear, the Tribunal is being criticised for not having said what activities would have given rise to a fear which was well-founded.
In my view, it was no more part of the obligation of the Tribunal under subs 430(1) of the Act to do such a thing (assuming it had an opinion on the matter, which seems doubtful, but which was implicit in the argument on behalf of Mr A) than it would be at common law for a court, when it finds that a set of facts does not fall within a statutory provision, to say what other set(s) of facts would fall within that provision (assuming it has an opinion on the matter).
I therefore reject the second ground of review as well.
In the circumstances, I dismiss the application for review with costs.
I certify that this and the preceding 26 pages
are a true copy of the reasons for judgment
of the Honourable Justice Katz.
Associate:
Date: 31 December 1998
Counsel for the applicant: Mr Craig Colborne
Counsel for the respondent: Mr Stephen Lloyd
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 23 November 1998
Date of judgment: 31 December 1998
