FEDERAL COURT OF AUSTRALIA

Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264

MIGRATION – review of  decision of the Refugee Review Tribunal – well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion and membership of a particular social group – whether failure of Tribunal to raise potential adverse findings with the applicant deprived him of the opportunity to give evidence – need for an opportunity to be genuine – whether failure to give reasons – whether Tribunal is required to identify inconsistencies at the time of the hearing – whether Tribunal made findings based on particular facts that did not exist – distinction between a particular fact, conclusions based upon a particular fact, and observations or comments by the Tribunal.

WORDS AND PHRASES – “particular fact”

Migration Act 1958 (Cth) ss 424, 425(1)(a), 430(1)(b), (d), 476(1)(g), (4)(b).

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339, applied

Abebe v The Commonwealth (1999) 162 ALR 1, applied

Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681, referred to

Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741, referred to

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, applied

Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 622; [1999] FCA 1726, referred to

Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480, referred to

Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34, referred to

Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962, referred to

MUNTASER IBRAHIM YOUSEF SHEIK MOHAMMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1061 OF 1999

SUNDBERG, KATZ and HELY JJ

13 MARCH 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT OF THE COURT

BACKGROUND

1                     A delegate of the respondent rejected the appellant’s application for a protection visa under the Migration Act 1958 (Cth) (“the Act”).  That decision was affirmed by the Refugee Review Tribunal (“the Tribunal”).  An application for review of the Tribunal’s decision was dismissed by O’Connor J.  The present appeal is from her Honour’s decision.

THE APPELLANT’S CLAIMS

2                     The appellant is a Palestinian resident of the Occupied Territories who arrived in Australia on 18 January 1997.  He was educated in Israel.  He studied pharmacy in India from 1991 to 1995.  He was employed in the Occupied Territories as a pharmacist from March to August 1996.  He lived at the same address in the Territories from 1987 to 1991 and resided in Ramallah on the West Bank during 1996.  The appellant left the Occupied Territories for Jordan via the Allenby Bridge.  He claimed to have departed legally and to have had no difficulty obtaining his travel documents.  The appellant claimed that he supported the Intifada after 1987, and that many people including friends died in the civil unrest and clashes with Israeli soldiers.  The appellant claims to be a refugee for reasons of race, religion, nationality, political opinion, and membership of a particular social group in that he is “a Palestinian who opposes other Palestinians”.  He says 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 because he was an active member of an “Independence Group” with a military wing.  He said his job was to recruit new members and to channel guns to the group’s military wing.  Details of his involvement in the group were divulged to Israeli authorities by a “comrade‑turned‑informer in 1992 or 1993”.

3                     After the appellant came back from India he returned to the Occupied Territories in February 1996 with the intention of staying only a few days before returning to India.  However, he was not permitted to leave.  He said he wanted to leave because he feared that if any guerilla activities, which were occurring at that time in the Occupied Territories, were linked to his group, he would be rounded up and sent to gaol.  He tried to go to India again in March 1996 but was denied permission to enter Jordan.  Later he found a lawyer who assisted him to leave.

4                     The appellant gave instances of civil disturbances, terrorism, military crackdowns and arrests in the Occupied Territories.  He has opposed the “Dead Peace Process” and claims he would be put in gaol if he were to return to the Occupied Territories.

TRIBUNAL’S DECISION

5                     The Tribunal accepted that the appellant does not recognise Israel’s occupation of the Occupied Territories, and that this constitutes a political opinion that is imputed to him by Israeli officials.  In coming to a conclusion on whether the appellant faced a real chance of persecution for reasons of his political opinion, the Tribunal made the following findings:

·               While the appellant may have been a civilian supporter of the Intifada prior to going to India in 1991, people were not arrested merely for their role in the streets during the Intifada.  He returned from India in 1996 without difficulty, notwithstanding that the Israelis were still controlling the frontier.  The Tribunal was not satisfied that this claimed role in the Intifada, on its own, gave rise to a real chance of persecution or even prosecution in the foreseeable future.

·               The persecution feared by the appellant as a result of his claimed past as a channeller of illegal arms and participation in other forms of violent and destructive protest was not persecution by reason of his opinions as such.  It was the right of the police and security forces in a country or zone to keep the peace and respond appropriately to violence and terrorism.

·               The appellant gave widely differing and wholly inconsistent accounts as to his anti‑Israeli activities and their detection by the Israeli security apparatus.  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 as to the claim about his “record” or lack of one.  Because of these inconsistencies the Tribunal did not accept that the appellant was ever involved in the activities he alleged to the degree he claimed, and it was not satisfied that he was ever suspected of such activities.

·               The appellant’s evidence supporting the claim that he might at least be a person “of interest” to the authorities, if not a suspected terrorist, was highly unreliable.

·               Evidence of arrests and corruption in the Occupied Territories, and the fact that the peace process was barely limping along, did not lead to the conclusion that the appellant faced a real chance of persecution by reason of his political opinion, or for any other Convention‑related reason.  The circumstances that the appellant claimed would affect him were he to return already existed during his stay in the Occupied Territories in 1996, when the authorities had many chances to detain him.

·               The conditions motivating the appellant 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.  He did not apply for protection in Australia until his three month temporary entry permit was about to expire.  This delay in applying for protection was not consistent with the claimed urgency of his situation.  Given that delay and the unreliability of the bulk of his evidence, the Tribunal inferred that he contrived his application at a late stage in his three‑month stay for reasons other than to seek protection from Convention‑related persecution.

The Tribunal concluded that the appellant did not face a real chance of Convention‑related persecution in the Occupied Territories, and was therefore not a refugee.

GROUNDS OF REVIEW

Section 425

6                     At the time at which the Tribunal made its decision in the present matter, s 424 of the Act provided for review by the Tribunal “on the papers” in certain cases.  Subsection 425(1) provided:

“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.”

The appellant contended in his written submissions that the Tribunal had made four findings which it had not raised with him at the hearing so as to give him an opportunity to deal with them.  The findings were in relation to:

·                 delay in his application for a protection visa;

·                 inconsistencies in his evidence concerning political activities;

·                 a document found to be tampered with;

·                 inconsistent evidence about his movements in and out of the Occupied Territories and his reason for the movements.

The written submissions asserted that the failure to raise these matters with the appellant meant that he had not been given an opportunity to give evidence for the purposes of par 425(1)(a).  It was said that the opportunity must be a genuine one, and that not raising concerns as to the particular matters referred to robbed the opportunity of a genuine character because he was not alerted to the matters he should address.

7                     These submissions had also been made before the primary judge, who rejected them.  Her Honour said:

“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.”

8                     On the hearing of the appeal, the appellant’s counsel, whilst not abandoning the written submission, declined to elaborate upon it, other than in relation to the ground based upon par 476(1)(g).

9                     The ambit of par 425(1)(a) was considered by a Full Court (Tamberlin, Sackville and Katz JJ) in Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339.  Sackville J, at 354-5, [66], said:

“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.”

The appellant had his opportunity to give evidence.  What he said in his written submissions had been denied to him could at most have formed part of the “full panoply of procedural protections” referred to by Sackville J in Cho.  There could have been a procedural irregularity at the hearing.  However, for the reasons given in Abebe v The Commonwealth (1999) 162 ALR 1 at 51, [187] (Gummow and Hayne JJ), and at 76, [295] (Callinan J), the failure to put the four matters to the appellant at the hearing did not rise to the level of a procedural irregularity. We agree with the primary judge that the matter complained of did not constitute a failure by the Tribunal to give the appellant an opportunity to appear before it to give evidence within par 425(1)(a).

Failure to give proper reasons: par 430(1)(b)

10                  The case was conducted before the primary judge on the basis that a failure by the Tribunal to set out the reasons for its decision as required by par 430(1)(b) constitutes a failure to observe a procedure for the purposes of par 476(1)(a).  Different views have been expressed as to whether this is so.  Compare Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 (Heerey, Merkel and Goldberg JJ; unreported; 2 December 1999) with Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 (Whitlam, RD Nicholson and Gyles JJ; unreported; 17 December 1999).  We will assume, without deciding, that it is.

11                  The appellant contended in his written submissions that the Tribunal had not made clear what it meant when it referred to his “record”.  We agree with the primary judge that this complaint has no substance.  On a number of occasions in the course of describing the appellant’s claims and evidence, the Tribunal records his contentions about his “record”.  It places the word in inverted commas to indicate that it is the appellant’s and not the Tribunal’s word.  On other occasions the Tribunal refers to the fact that the appellant had no “criminal record” and had a “record free of criminality”.  Sometimes it uses the word “record” in a context that makes clear what it means.  Thus it notes evidence that the appellant “has no negative record with the Israeli or Palestinian authorities”.  In one place the Tribunal observes that the fact that the appellant had been delayed at a border crossing did not itself indicate that he had a “serious record with the Israeli authorities”.  Where the context in which the Tribunal uses the word “record” does not indicate a criminal record, it is clear that the Tribunal uses the word to refer to information held by the Israeli or Palestinian authorities which made him of interest to them as a security threat.

12                  The appellant also complained that when the Tribunal referred to inconsistencies in his evidence it did not then and there identify the inconsistencies.  This complaint is baseless.  The Tribunal’s careful and detailed reasons occupy twenty‑nine pages.  In the course of recording the appellant’s claims and his evidence, the Tribunal noted particular inconsistencies in them.  When it came to make findings and give reasons, it referred back to those inconsistencies - “The Tribunal has shown that the Applicant himself gave widely differing and wholly inconsistent accounts as to his anti‑Israel activities …”.  The Tribunal was under no obligation at that stage to repeat its earlier account of the inconsistencies.

No evidence: s 476(1)(g), (4)

13                  The claim here is that the Tribunal made its decision based upon particular facts that did not exist.

14                  The words “particular fact” in par 476(4)(b) do not require the identification of some single particular fact that may be said to be the foundation of the Tribunal’s decision.  A decision may be based upon the existence of many particular facts.  It will be based upon the existence of each particular fact that is critical to the making of the decision.  Compare Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220‑221 (Black CJ, Spender and Gumow JJ), a decision on the materially identical provision in the Administrative Decisions (Judicial Review) Act 1977 (Cth).  And see Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 622 (Katz J, unreported; 9 August 1999), a decision of Katz J affirmed on appeal [1999] FCA 1726 (French, Heerey and Lindgren JJ; unreported; 12 November 1999) and Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 (unreported; 23 April 1999), a decision of a Full Court (Lee, Whitlam and Weinberg JJ), both on par 476(4)(b).

15                  A “particular fact” is to be distinguished from a conclusion based upon a particular fact, although the particular fact upon which the conclusion is based may qualify under par 476(4)(b): Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 (Moore, Mansfield and Emmett JJ; unreported; 3 February 1999). Observations or comments by the Tribunal about perceived inconsistencies in the evidence are not “particular facts” within par 476(4)(b): Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 (Heerey J; unreported; 16 July 1999). The appellant’s submissions failed to pay sufficient regard to this distinction, but in view of the matters referred to in par 17 below, it is not necessary to pursue this matter further. Nor is it necessary to pursue the question whether the Tribunal’s decision was “based upon” the “particular facts” upon which the appellant relies.

16                  The particular facts that were said not to exist were identified as follows:

(a)                the appellant’s claim to have been on a black list prior to 1991;

(b)               that the appellant did not state how he came to know that his friend had informed on him;

(c)                the appellant’s claim to have a subjective fear of persecution throughout his entire stay in India;

(d)               the appellant’s claim 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)                that the appellant’s motivation to return to India in 1996 was to study.

17                  As to (a), the Tribunal was entitled to infer from the appellant’s initial statement accompanying his application for a protection visa that he was claiming that his name was on a black list before 1991.  As to (b), the appellant mis‑states what the Tribunal said.  The Tribunal was considering the appellant’s initial statement, identified in the papers before the Tribunal as his “submission”.  The Tribunal correctly observed that he “did not state in his submission how he came to know this”.  As to (c), there was ample material from which the Tribunal could infer that the appellant claimed to have a subjective fear of persecution throughout his stay in India.  For example, in his initial statement he said that while he was in India doing his pharmacology studies one of the members of his organisation was arrested and tortured.  During the same period his father and brother were arrested by the security forces.  Having his name on the black list made life very hard.  His letters home from India were opened by the Israelis and the information in them was put in the security force’s computers.  He concluded - “So I didn’t go back home for nearly five years”.  Point (d) mis‑states what the Tribunal said.  It did not say that the appellant claimed to have been detained.  It referred to his claim “about his being liable to arrest and detention merely for reasons of his known membership of the group, and for his past role in channelling arms to its military wing”.  As to (e), the Tribunal was considering depositions in support of his application from the appellant’s father and a lawyer.  The father stated that the appellant had finished his first degree in pharmacology in India in 1996.  He then came back home.  He intended to do a second degree in India but was not allowed to leave.  The father saw a lawyer who secured permission for the appellant to leave.  The lawyer’s deposition confirmed this.  In those circumstances, the Tribunal was entitled to say:

“The Tribunal observes from [those] two depositions that, having feared he would be arrested or held back by Israeli authorities in the event of returning home, the Applicant decided to depart the Occupied Territories again in 1996 motivated evidently not by fear of persecution but by a desire to return to India to resume study.”

18                  In oral submissions, counsel for the appellant submitted that the Minister was not entitled to resist a challenge to a decision based on par 476(1)(g) by referring to material which was before the Tribunal which might justify the making of the decision, unless the material in question had been referred to in the Tribunal’s statement of findings and reasons under subs 430(1). It is for the Tribunal to state what material it relies upon; it is not for the Court to trawl through the papers to find material before the Tribunal which it might have been open to the Tribunal to accept and which, if accepted, would justify the making of the decision.

19                  In our view, it would not be appropriate to construe par 476(1)(g) as if it contained the words which we have emphasised:

“that there was no evidence or other material referred to by the Tribunal in its statement of findings and reasons under subsection 430(1) to justify the making of the decision”

for the simple reason that the words are not there. It would be an odd result if a “no evidence” ground were made out when there was material before the Tribunal to justify the making of the decision, albeit not referred to in its subs 430(1) statement. Reference back to the Tribunal in those circumstances for a re-determination of the application would be inappropriate.

20                  In any event, the issue before the Tribunal is whether there was material before the Tribunal to justify the making of the decision. The decision in question is negative in nature, namely, that the Tribunal is not satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention (subs 36(2) of the Act). The Tribunal is not required to have evidence that negates the appellant’s status as a refugee. We do not need to consider the extent to which par 476(1)(g) has a role to play where the Tribunal’s decision is that the appellant’s claim is not made out to its satisfaction, as the matters referred to in the “Findings and Reasons” section of the Tribunal’s statement provide an ample foundation for the conclusion which it reached.

CONCLUSION

21                  It has not been shown that the primary judge erred in holding that none of the grounds

of review had been made out, and the appeal must be dismissed.

Associate:

Dated:              13 March 2000