FEDERAL COURT OF AUSTRALIA

Sheik Mohammed v Minister for Immigration & Multicultural Affairs [1999] FCA 1186

MIGRATION –  application to review decision of Refugee Review Tribunal – whether procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision observed – whether decision involved error of law being an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found – whether there was no evidence or other material to justify the making of the decision

Migration Act 1958 (Cth), ss 424, 425, 476(1)(a), 476(1)(e), 476(1)(g), 476(2), 476(4)(b)

Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946, cited

Sun Zhan Qui v Minister for Immigration and Multicultural Affairs [1997] FCA 327, cited

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, cited

MUNTASER IBRAHIM YOUSEF SHEIK MOHAMMED v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 251 of 1999

O'CONNOR J

SYDNEY

27 AUGUST 1999

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application to review the decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 February 1999 affirming a decision made by a delegate of the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

2                     The amended grounds of the application are:

1.         That procedures required by the Migration Act 1958 (Cth) (“the Act”) to be observed in connection with the making of the decision were not observed.

2.         That the decision involved an error of law being either an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the Tribunal.

3.         There was no evidence or other material to justify the making of the decision.

3                     The applicant seeks an order setting aside the decision of the Tribunal and an order remitting the matter back to the Tribunal to be determined according to law.

BACKGROUND

4                     The applicant is a Palestinian resident of the Occupied Territories who arrived in Australia on 18 January 1997.    He was educated in Israel and also studied pharmacy in India for four years from 1991 to 1995.  He was employed in the Occupied Territories as a pharmacist from March to August 1996 after gaining accreditation to practice there.  He lived at the same address in the Occupied Territories from 1987 to 1991 and resided in Ramallah on the West Bank during 1996.

5                     When the applicant began the journey that brought him to Australia he departed the Occupied Territories for Jordan via Allenby Bridge.  He claims he departed legally and that he had no difficulty obtaining his travel documents.

6                     The applicant also claims that in his younger years he witnessed the arrest and black-listing by Israeli authorities of friends and family members.  He referred to Israeli authorities setting up checkpoints after the 1967 “Six Day War”.  He cited his support for the Infitada after 1987 and the fact that many people including friends died in the civil unrest and clashes with Israeli soldiers.  The applicant claimed he was a refugee for reasons of race, religion, nationality, political opinion and, in that he is “a Palestinian who opposes other Palestinians”, membership of a particular social group.  The applicant claims his name is on a black-list maintained by Israeli security forces on every computer at every border and in every city in Israel and the Occupied Territories.   This is so, the applicant claims because he was an active member of an “Independence group” with a military wing.   He claimed his job was to recruit new members and to channel guns to the group’s military wing.  He claimed that he was working in secret, however, details as to the extent of his involvement in the group was divulged to Israeli authorities by a comrade-turned-informer in 1992 or 1993.  He claimed Israeli authorities came to his family home and briefly detained his father and brother.  Nonetheless the applicant was able to travel to India to complete his degree and return to the Occupied Territories in February 1996 for a brief visit.

7                     The applicant claimed that he tried to leave again for India in February 1996 because he feared that if any guerilla activities, occurring at that time in the Occupied Territories, were linked to his group, he would be rounded up and jailed.  He claimed that he tried to depart for India again on 3 March 1996 and he was again denied permission to pass into Jordan. However the applicant claimed he found a lawyer who assisted him in leaving the country.

8                     The applicant said he was staying in Australia as a guest of Australians he had met in India.  He cited instances of civil disturbances, terrorism, military crackdowns and arrests in the Occupied Territories.   The applicant said has opposed to the “Dead Peace Process” and claimed that he would be jailed if he were to return to the Occupied Territories.

LEGISLATION

9                     The relevant provisions of the Act provide:

“Review “on the papers”

424.   (1)  If, after considering the material contained in the documents given to the registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.

   (2)  For the purposes of subsection (1), a decision or recommendation made on a review is taken to be the decision or recommendation most favourable to the applicant if there is no other decision or recommendation that:

(a)       the Tribunal could make; and

(b)       in the Tribunal’s opinion, the applicant would prefer the Tribunal to make.

Where review “on the papers” is not available

425.    (1)  Where section 424 does not apply, the Tribunal:

(a)       must give the applicant an opportunity to appear before it to give evidence; and

(b)       may obtain such other evidence as it considers necessary.

   (2)  Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.

…

Application for review

476.   (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)       that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

…

(e)        that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

…

(f)        that there was no evidence or other material to justify the making of the decision.

   (2)  The following are not grounds upon which an application may be made under subsection (1):

(a)       that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)               that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

…

   (4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out unless

(a)       the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)       the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

TRIBUNAL DECISION

10                  The Tribunal accepted that the applicant was a pharmacy graduate and that he worked for a period as a pharmacist in the West Bank.  The Tribunal also accepted that the applicant does not recognise Israel’s occupation of the Occupied Territories and that this constitutes an political opinion that is imputed to him by Israeli officials.

11                  However, in coming to a conclusion as to whether or not the applicant faced a real chance of persecution for reasons of this political opinion the Tribunal made the following findings:

·          The Tribunal accepted that the applicant may have been a civilian supporter of the Infitada prior to his departure from the Occupied Territories in 1991 however the Tribunal could find no evidence of persons arrested merely for their role in the streets during the Infitada.  The Tribunal also noted that the applicant was away in India during this time and returned in 1996 without difficulty notwithstanding the fact that Israelis were still controlling the frontier he crossed.  The Tribunal was not satisfied that the applicant’s claimed role in the Infitada, on its own, is indicative of a real chance of facing persecution or even prosecution in the foreseeable future.

·          To the extent that the applicant claimed fear of persecution over his claimed past as a channeller of illegal arms and his participation in other forms of violent and destructive protest, the Tribunal concluded that the harm he claimed to fear were not persecution for reasons of his “opinions” as such.  The Tribunal considered that it must be the right of police and security forces in a country or zone to keep the peace and prevent and respond appropriately to violence and terrorism.

·          The Tribunal found that the applicant gave widely differing and wholly inconsistent accounts as to his anti-Israeli activities and as to their detection by the Israeli security apparatus.  Furthermore there were serious inconsistencies in his evidence as to the status or form of his “group”, as to his political activities in 1996 or lack of them, and, above all, as to the claims about his “record” or lack of one.  Due the inconsistency of these claims the Tribunal couldn’t accept that the applicant was ever involved in such activities to the degree, seriousness and gravity claimed was not satisfied that he was ever suspected of such activities.

·          The Tribunal found the applicant’s evidence supporting the claim that he might at least be a person “of interest” if not a suspected terrorist, to be highly unreliable.  The Tribunal accepted as reliable the independent evidence to the effect that all relevant borders were closed by the Israelis in February and March 1996 following a terrorist attack, and re-opened later.  The evident discriminations were shown, even in the applicant’s case, as being a temporary measure.

·          The Tribunal, in taking account of the wealth of evidence about arrests, law and order and corruption in the Occupied Territories and reports to the effect that the peace process is, at best, limping along, found that these facts did not lead it to the conclusion that the applicant faced a real chance of persecution for reasons of his political opinion, or for any other Convention-related reason.  This conclusion was based substantially on the fact that the circumstances the applicant claims would affect him in future already existed during his stay in the Occupied Territories in 1996 when the authorities had many chances to detain him.

·          The Tribunal could find no evidence that the length of the applicant’s absence from home would lead to significant imputations against him.

·          The Tribunal also found that the conditions motivating the applicant to apply for protection in Australia existed prior to his arrival here.  He had already decided he needed a country in which to seek refugee status before he went to the Australian High Commission in New Delhi.  The applicant’s delay in applying for protection in the circumstances is not consistent with the claimed urgency of his situation.  Given his delay in applying and, in particular, given the unreliability of the bulk of his evidence, the Tribunal inferred that the applicant contrived his application at a late stage in his three-month stay for reasons other than to seek protection from Convention-related persecution.

12                  The Tribunal concluded that the applicant did not face a real chance of Convention-based persecution in the Occupied Territories and that he is therefore not a refugee.

DECISION

13                  The basis for judicial review argued before the Court is that the conclusions of the Tribunal, based as they were on credit, were vitiated by procedural and legal errors.  The applicant firstly submits that the Tribunal failed to give the applicant an opportunity to give evidence with respect to a number of critical matters which resulted in adverse findings against him which breached the procedure required by s 425 of the Act.

14                  The applicant pointed to four findings:

(a)                in relation to a delay in his application for a protection visa.

(b)               in relation to inconsistence in his evidence concerning political activities

(c)                in relation to a document, found to be “tampered with” and

(d)               in relation to inconsistent evidence about his movements in and out of the occupied territories and the reason for so doing,

and submits that concerns about these issues resulting in adverse findings as to the credit in the decision were never raised with the applicant at the hearing to elicit a response.  The failure to put these matters to the applicant for his response amounts to a failure to give the applicant a “genuine” opportunity give evidence (s 425(1)).

15                  Very recently in Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946 a full Court has considered the meaning of s 425 and the obligation it imposes.  In that decision Sackville J at para 66 said, relevantly:

“Section 425(1)(a), as its language and context make clear, is directed to ensuring that the applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers.  It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence.   Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act.   As Tamberlin and Katz JJ have pointed out, the procedural entitlements of an applicant appearing before the RRT are carefully delineated by the Migration Act.  They plainly do not include the full panoply of procedural protections that may be available in other forums.”

16                  Even accepting this as an accurate statement of the law, the applicant submits that the opportunity given must be a “genuine” one relying on the observations of Lindgren J in Sun Zhan Qui v Minister for Immigration and Multicultural Affairs [1997] FCA 327 where he said that the combination of s 476(1)(a) and s 425(1)(a) “have the effect that a failure to give a genuine opportunity to appear before the Tribunal to give evidence is such a ground”,this proposition being noted, with approval by the High Court, in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21.  Not raising concerns as to the particular matters does not alert the applicant as to what matters he should address and robs his opportunity of its genuine character.

17                  However considering the meaning of the word “genuine” when used in such a context in Minister for Immigration and Multicultural Affairs v Cho (above)Katz and Tamberlin JJrelevantly said (at para 33):

“We do not consider that there is any special significance in the reference to the word “genuine” which would expand the content of s 425 beyond the ordinary and natural meaning of the language used.   According to its terms the section simply requires that an opportunity be given to the applicant to appear and give evidence.  Obviously if there is no real opportunity given then the section has not been complied with.   This could arise, for example, where relevant evidence is not admitted or misleading statements are made by the decision-maker which discourage an applicant from calling or proceeding with a particular line of evidence.”

18                  In my view, there is no obligation, however desirable as a matter of natural justice imposed by the words of s 425, requiring the Tribunal to raise matters with the applicant which are concerning him or her.   The opportunity to speak to the Tribunal directly is given to the applicant when an oral hearing is arranged.  Only lack of such opportunity will amount to procedural error.  It may be that a failure to raise the matters referred to in this case could amount to a breach of natural justice.  However, consideration of this issue is beyond the jurisdiction of this Court, when such a matter arises under the Act.

19                  The applicant also submitted that the reasons for decision were defective in dealing with a number of other matters and these defects amounted to a failure to give proper reasons required by s 430(1) of the Act.  In particular,

(a)                The Tribunal did not define a word it used namely “record” and

(b)               The Tribunal did not, at the time it found evidence to be inconsistent, refer to that particular evidence at that place in the reasons.

20                  As the respondent submits, reasons of a Tribunal are to be read as a whole and are not required to deal with every aspect of the evidence which is before the Tribunal.  This decision, read fairly, deals systematically and at length with all of the relevant issues.  The meaning given to the word “record” is clear from the text of the decision, which refers to the information known about him by the Israelis.  The applicant has relied here in raising this point on passages taken in isolation to create a basis for this ground.  This is not a proper approach to construing such reasons and could be characterised as an approach “fine tuned” for instances of error.

21                  The final ground argued by the applicant is that there were findings made by the Tribunal based upon facts which did not exist.

22                  They were particularised in submissions as follows:

“(a)     The applicant did not claim that his name was on a black list prior to 1991 (RD1, p207.2);

(b)       He did state how he came to know that his friend had informed on him (RD1, p207.3);

(c)        The applicant never claimed to have a subjective fear of persecution throughout his entire stay in India (RD1, p207.5);

(d)       The applicant never claimed that he was detained because the authorities knew about his membership of a particular group or knew that he had a past role channelling arms to its political wing;

(e)        The evidence is not that the applicant’s motivation to return to India in 1996 was to study.  The evidence is that he left due to fear of being arrested or harmed by the authorities as a suspected terrorist.  (RD1, p212).”

23                  These particulars are not in my view, matters which had to be established in order to reach the decision made by law.  Nor could it be established that there was no other material from which the person could reasonably be satisfied that the matter was established.

24                  However, the respondent demonstrated, in some detail, that the inferences leading to the particular findings were all open on the evidence, in any event.

25                  For example in a statement which accompanied his visa application the application described events in 1967: the imprisonment of close friends, loss of land, the formation of Palestinian groups against the Zionist influence, his active membership of an “Independence Group”.  In the midst of that account the applicant said:  “My name is on the black list …”  The Tribunal inferred from that portion of the document that the applicant attributed his presence on the black list to his active membership of an independence group – an inference that was open to the Tribunal on the evidence.

26                  The Tribunal commented that the applicant did not state in his submission (my emphasis) how he came to know that a friend had informed on him.  This statement is literally true.

27                  The Tribunal also considered the applicant’s submissions on the following matters:

(a)        that Israeli security forces attended his family’s home and arrested his father and brother;

(b)        that all his correspondence from India was intercepted and that he was forced to send information by computer;

(c)        a family visit to Jordan where he was able to meet them;

(d)        evidence from a lawyer who assisted in the applicant’s departure from the Occupied Territories; and

(e)        evidence from the applicant’s father on the applicant’s departure from the Occupied Territories.

28                  It was open to the Tribunal, on the above evidence, to infer that the applicant claimed to fear persecution while in India undertaking his pharmacology studies.

29                  The Tribunal also noted that even though his name was on a black list, the applicant’s duties with the independence group did not involve carrying guns.  Nonetheless the Tribunal inferred that the applicant’s activities in the group caused him to be placed on the black list and that he believed that his activities as a “freedom fighter” were known to the Israeli authorities.

30                  As stated previously, in the light of my conclusion as to the application of s 476(4), it is not necessary to come to a view on these additional submissions as to the particular matters.  However they do effectively answer the claims made.  There was ample evidence to justify the making of the decision.

31                  None of the amended grounds are established.

32                  The application is dismissed with costs.

Associate:

Dated:              27 August 1999