FEDERAL COURT OF AUSTRALIA

Melhem v Minister for Immigration and Multicultural Affairs [2000] FCA 1617

IMMIGRATION – application for protection visa – application on basis of political activities of applicant – plausibility of applicant’s claims – whether Refugee Review Tribunal made findings of fact regarding applicant’s claims – whether concluding claims were implausible is a finding of fact – whether periods of detention as claimed amounted to persecution.

Migration Act 1958 (Cth):  ss 476(1)(a), 430(1)

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469  referred to

Rajadurai v Minister for Immigration and Multicultural Affairs [1999] FCA 125  referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259  referred to

Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 referred to

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

YHYA MELHEM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 277 of 2000

GOLDBERG J

13 NOVEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant applies to the Court pursuant to Pt 8 of the Migration Act 1958 (Cth) (“the Act”) to review the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs, the respondent, (“the Minister”) to refuse to grant the applicant a protection visa.  The applicant, a 29 year old citizen of Jordan, arrived in Australia on a student visa on 12 November 1996.  On 7 March 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs and on 15 August 1997 a delegate of the Minister refused to grant his application and he was notified of the decision by letter dated 18 August 1997.  On 18 September 1997 the applicant applied to the Tribunal to review the decision of the Minister.  The Tribunal held a hearing on 15 December 1999 at which the applicant gave evidence through an interpreter and was represented by a solicitor.

2                     The applicant claims to be entitled to a protection visa on the ground that he has a well‑founded fear of persecution if he returns to Jordan by reason of his political opinions and previous political activities and that accordingly he is entitled to refugee status under Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).

3                     The applicant challenged the decision of the Tribunal on the grounds that it failed to set out its reasons or findings or refer to the evidence in relation to particular claims he had made and that it wrongly interpreted the law in a number of respects.

The applicant’s claims

4                     The Tribunal set out in some detail the applicant’s claims and the evidence supporting his claims.  The applicant said he was a Muslim and a student at Yarmouk University in Irbud in the early 1990s.  Since 1990 he had attended numerous meetings of Hibz al Tahrir, an opposition party, and the Okhman al Musilmeen, usually at mosques.  Opposition to the government was expressed at these meetings and from about 1992 he began to play an active role in these meetings in his village by giving lectures on religion and politics when he was home from university.  The applicant believed he first came to the notice of authorities when he was speaking in the mosque.  The applicant claimed that as a result of his activities he was arrested five times between February 1995 and June 1996 when he was tortured, beaten and humiliated and held for between two and four weeks and then released without charges.

5                     The applicant held a passport as he had gone on a pilgrimage to Mecca in 1994 and in mid 1996 he decided to leave Jordan.  He obtained a student visa to Australia and left Jordan without any serious difficulties.  He commenced studying in Australia but stopped soon after he obtained a protection visa application form.  In early 1998 his lawyer asked him if there were any documents which could support his application and he contacted his family to obtain a report from the hospital at which he had been treated for the injuries suffered as a result of his detentions.  He submitted to the Tribunal a document dated 18 June 1998 headed “Jordan Armed Forces, King Hussein Medical Centre”.  It stated that the applicant had first visited the clinic on 21 January 1996 and subsequently on 2 May 1996 and 17 June 1996.  The doctor who wrote the document stated that the applicant’s injuries had been caused by attacks on the street by unknown assailants. 

6                     The applicant’s family told him that the authorities had come to the house on four occasions and left arrest warrants to bring him to court.  A statement from the applicant’s cousin was submitted to the Tribunal which stated that the cousin had visited Jordan and learned that the applicant had been taken away by intelligence officers on a number of occasions.

7                     The applicant submitted to the Tribunal photocopies and English translations of three documents purporting to be summonses from the Criminal Court at Al‑Zarqa.  At the hearing, the applicant submitted the originals of four such documents.  The documents were dated 11 February 1997, 24 June 1997, 9 September 1997 and 9 October 1997.  The Tribunal sent these documents to the Document Examination Unit for examination.  The examination disclosed that the June and October documents were prepared before the February document and were considered to be unreliable.  The applicant was given the opportunity to respond to the results of the examination and he conceded that they could support a finding that the documents were not genuine.  The applicant said that he believed that the documents were not fraudulent or, if they were, he was not a party to the fraud which must have been carried out without his knowledge or consent.

8                     The applicant said that he was never an official member of either the Islamic Liberation Party or of the Muslim Brotherhood.  He said that he agreed with the Islamic Liberation Party’s criticism of corruption and of the government but did not agree with any of its more extreme policies.  He said that his own role was speaking to a small group about religion and politics and that he did not promote the more extreme platform of the Islamic Liberation Party, but rather talked about corruption.  In Australia he had not joined any radical Muslim groups.

9                     The Tribunal put to the applicant the letter from the doctor which he had submitted and he said that the doctor did not dare write down that the applicant had been assaulted by members of the Intelligence Service.  When he was asked how it was that he was able to see the same doctor as an emergency patient in a clinic in a big hospital on three separate occasions, he responded that the doctor was his own doctor.  He could not explain why the doctor wrote that he saw the applicant for the first time on 21 January 1996.

10                  After the hearing the applicant made a further submission to the Tribunal in which he corrected some of his previous evidence.  He said that he had recently contacted his family and that it was not true that the authorities had come to his house on a number of occasions leaving a warrant of arrest on each occasion.  While they had visited the house on a number of occasions the summonses arrived by mail and at the one time.

The Tribunal’s findings

11                  The Tribunal identified the relevant legislation and principles of law applicable to the issue of whether the applicant was a refugee for the purposes of the Convention.  After identifying the applicant’s claims and evidence in support, the Tribunal set out its findings and reasons for its findings.  The Tribunal noted that the applicant left Jordan in a legitimate way for a legitimate reason.  The Tribunal referred to the applicant’s claim of an association with the Al‑Tahrir organisation which was banned and had been accused of an attempt to assassinate the late King Hussein.  The Tribunal found that:

“it was not improper for the Jordanian State to detain the Applicant if he was suspected of being associated with that organisation, although that detention should accord with proper and just legal processes and treatments.”

12                  The Tribunal found the applicant’s claim to have had a public and reasonably constant role of political opposition hard to sustain when placed alongside matters such as the failure of the authorities to lay any charges against him over the period and his legal departure from Jordan.  The Tribunal found it implausible that the security authorities, knowing that he was a regular speaker against government policy and a supporter of a banned political party, would detain him five times, release him without charge and fail to notice that he was making arrangements to leave the country.

13                  The Tribunal accepted that the Jordanian police and security agencies made arrests without due process and without proper charges being laid.  The Tribunal then made a finding, which was the subject of the considerable analysis by the applicant:

“Consequently it is not implausible that the Applicant could have been detained.  The implausibility is that he would have been under surveillance, detained on five occasions, that the security agency would have accurate information on what he had been doing and yet no charges were laid then nor were his detentions prolonged.  According to the US Reports, cited above,

‘The security forces arbitrarily arrest and detain citizens.  Under the Constitution, citizens are subject to arrest, trial, and punishment for the defamation of heads of state, dissemination of ‘false or exaggerated information outside the country which attacks state dignity’ or defamation of public officials.

The Criminal Code requires that legal authorities file formal charges within 10 days of an arrest.  However, the courts routinely grant requests from prosecutors for fifteen day extensions as provided by law.  This practice generally extends pretrial detention for protracted periods of time.  In cases involving state security, the authorities frequently hold defendants in lengthy pretrial detention, do not provide defendants with the written charges against them, and do not allow defendants to meet with their lawyers until shortly before trial …’”

I will return to this finding because the applicant submitted that it amounted to a finding that the applicant had in fact been detained but also submitted that the Tribunal failed to make any finding on the applicant’s claim that he had been tortured in the course of the detentions.

14                  The Tribunal found that it was plausible that the applicant was caught up in opposition to the government in mid 1996 but that he had not claimed to have been detained particularly for that reason.  The Tribunal was satisfied that the applicant had not been persecuted nor would he be persecuted in the future for his participation in the demonstration in Amman in 1996.

15                  The Tribunal found that it was plausible that the applicant had attended lectures given by a critic of the government and that he went to mosques where opposition views were to be heard.  The Tribunal then said:

“However, the Tribunal is not satisfied that he was himself as outspoken as he claimed to be nor that he was a known leader of a cell group nor that he was very active in distributing pamphlets on behalf of the Al‑Tahrir Party [or] of other opposition groups.  Other reasons for this dissatisfaction are discussed in the following paragraphs.”

16                  The Tribunal did not accept that the letter from the doctor at the medical centre was authentic and set out in detail its reasons for reaching this conclusion.  In particular it found a serious contradiction in the applicant’s claim that he was able to see the one doctor in the Hospital’s emergency department on three separate occasions as he was the family doctor because the letter stated that the doctor first saw the applicant on 21 January 1996.

17                  The Tribunal found it implausible that the authorities would have paid no attention to the fact that the applicant held a valid passport if he was under such constant surveillance as to have been picked up and detained on five occasions.  The Tribunal did not find that possession of a valid passport and the applicant’s legal departure from Jordan closed off the applicant’s claim to be a refugee but it did find that those were factors, among others, which accumulated to undermine the applicant’s claim.  The Tribunal did not accept the applicant’s claim that he was able to leave Jordan without hindrance because of the lack of security at the airport; rather the Tribunal found that Jordan had a high level of internal security which covered the issuing of passports and surveillance at major exit points.

18                  The Tribunal did not accept that the purported warrants were genuine and it set out in some detail its reasons for reaching this conclusion. 

19                  The Tribunal was not satisfied that the applicant left behind him in Jordan a reputation for dissidence which provoked the authorities, after he left, into summonsing him to appear before them, and it rejected the claims that the applicant was at risk of harm in the future should he return to Jordan.

20                  Having made findings as to the particular circumstances of the applicant, the Tribunal turned to consider:

“… whether the general context in Jordan is one where a real chance of persecution of the Applicant, or people of his ilk, is plausible."

The Tribunal then analysed material in relation to the political and social situation in Jordan and concluded that although the Jordanian system of government placed limitations on its citizens, that was not the same as saying that its citizens faced a real chance of persecution.  The Tribunal concluded:

“The Tribunal finds that there is no real chance that the Applicant will suffer persecution should he return to Jordan.  It is not satisfied that his particular circumstances are as he has claimed nor that the general situation in Jordan is one where a citizen, outside the country, would face a real chance of persecution in the foreseeable future on his return.  The Tribunal does not find the Applicant’s fear of persecution to be well‑founded.  Accordingly he is not a refugee.”

Reasoning

21                  The applicant’s primary submission was that the Tribunal had failed to make findings in respect of his central claims.  The applicant submitted that there was a failure to observe procedures required by the Act to be observed in connection with the decision (s 476(1)(a) of the Act) when the Tribunal failed, in accordance with s 430(1) of the Act, to set out its findings on material questions of fact and its reasons for its decision.  The applicant referred to Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 where the Full Court said at 480:

“If there is a failure to prepare any statement at all, then s 476(1)(a) is enlivened.  In principle the same result should follow if a statement purporting to be in conformity with s 430 is prepared, which does not satisfy the requirements of the section.  If the statement is said not to comply with s 430(1) because it fails to set out findings on a question of fact which a court holds to be material (but which the RRT did not), then the decision could be set aside under s 476(1)(a) for want of procedural compliance. 

As the Full Court observed at 480, the Tribunal:

“…must make findings on questions of fact that are central to the case raised by the material and evidence before it.”

22                  The applicant submitted that no finding was made by the Tribunal on his claim that he had a subjective fear of persecution if he returned to Jordan.  The applicant accepted that the Tribunal may be taken to have rejected his claim that he had such a subjective fear if it had clearly refuted the applicant’s case:  Rajadurai v Minister for Immigration and Multicultural Affairs [1999] FCA 125.  The applicant submitted that the Tribunal had not refuted his case but rather made a finding that the applicant had in fact been detained.  However, if the Tribunal had made a finding that there was no well‑founded basis for any subjective fear that the applicant might have had, it would not have been necessary to make a specific finding as to that subjective fear:  Wang v Minister for Immigration and Multicultural Affairs [1999] FCA 1464 at [14].

23                  It is a misunderstanding of the Tribunal’s reasoning process to say that it made a finding that the applicant had been detained or that there was a well‑founded objective basis for any subjective fear of persecution.  It is true that in the passage to which I have referred in par 12 above the Tribunal said:

“Consequently it is not implausible that the applicant could have been detained.”  (emphasis added)

That statement was made in the context of the immediately preceding finding that the Jordanian Police and Security Agency did not have a good reputation.  All the Tribunal was saying was that for that general reason the applicant “could” have been detained but it did not make a finding that the applicant “had” been detained.  Indeed the Tribunal had made a finding to the contrary when it found earlier:

“It is implausible that, armed with this information, they would detain him five times release him without charge then fail to notice that he was making arrangements to leave the country.”

24                  As the Tribunal directly addressed the issue whether there was an objective basis for any fear of persecution and found that the applicant had not been detained, it did not become necessary to determine whether the applicant had a subjective fear of persecution.  I adopt, with respect, the observations of Sackville J in Rajadurai v Minister for Immigration and Multicultural Affairs (supra) at [19]:

“For myself, I think that there is much to be said for the view that the RRT commits no error of law by rejecting the objective element of an applicant’s claim, without making any express finding as to whether the applicant has a subjective fear of persecution if returned to his or her country of nationality.  Although it will often be sensible to consider at the outset whether the applicant has a fear of persecution on Convention grounds, it may simply be unnecessary in a particular case to address that question having regard to the findings made on the objective element of the test.”

25                  The applicant submitted that the Tribunal failed to make findings whether the applicant was a supporter or perceived supporter of the Liberation Party or the Muslim brotherhood and that this was a critical finding because the applicant claimed that the reasons for his detention were because of such support.  The applicant contended that this failure was a significant flaw in the Tribunal’s reasons, in circumstances where it had found that the applicant’s detention was not implausible.  However, the need for such a finding was removed once the Tribunal found that the applicant had not been detained as he had claimed.

26                  As I have already observed, the applicant’s analysis of the Tribunal’s finding of the plausibility of his detention is misconceived.  The Tribunal, in fact, did not make any finding that the applicant had been detained but rather found that although it was not implausible that he could have been detained, having regard to the general conduct of the Jordanian police and security agencies, the particular circumstances claimed by the applicant were implausible and were rejected by the Tribunal.  It is apparent from the passage in the Tribunal’s reasons to which I have referred in par 12 above that the Tribunal’s ultimate conclusion was that it rejected the applicant’s claim that he had been detained.  The applicant submitted that if the Tribunal’s finding was that his detentions, as claimed, were not prolonged then there was an inconsistency between the country information to which the Tribunal later referred which indicated that persons could be detained for up to twenty‑five days without being charged.  However, according to the applicant’s claim, he was not detained and then charged, but was rather detained and then released.  There is therefore no inconsistency between the applicant’s claim and the country information that people were detained for extended periods before formal charges were laid.

27                  The applicant submitted that although the Tribunal found that it was not satisfied he was as outspoken as he had claimed, nor was it satisfied that he was a known leader of a Cell group or very active in distributing pamphlets on behalf of the Al‑Tahrir party or other opposition groups, the Tribunal did not set out the reasons why it was not so satisfied.  The conduct which the Tribunal was addressing at this point involved a determination of the applicant’s degree of involvement in such activities.  What the Tribunal was saying was that it did not accept the applicant’s evidence as to his degree of involvement. 

28                  I approach this part of the Tribunal’s reasons with the admonition of the majority of the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, in mind at 272:

“… 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 gleamed from 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.”

Further, as Kirby J pointed out at 291:

“The reasons under challenge must be read as a whole.  They must be considered fairly.  It is erroneous to adopt a narrow approach, combing through the words of the decision‑maker with a fine appellate tooth‑comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”

29                  It is apparent that the Tribunal reached the conclusion that it did not accept the applicant’s evidence as to his degree of involvement with political parties having regard to its view of the applicant’s credibility.  This is made clear by its observation:

“Other reasons for this dissatisfaction are discussed in the following paragraphs.”

What then appears in the paragraphs following that comment are the Tribunal’s reasons why it did not accept that the letter from the doctor was authentic and that the warrants were genuine.  Although not articulated as clearly as it might have been, I am satisfied that it is apparent from the Tribunal’s reasons that the reason why it was not satisfied that the applicant was as outspoken as he had claimed, nor was it satisfied that he was a known leader of a cell group or very active in distributing pamphlets on behalf of the Al‑Tahrir party or other opposition groups, was that it did not accept the applicant as credible on those issues.

30                  The applicant then submitted that the Tribunal had fallen into an error of law in the manner in which it approached the question whether the applicant had a well‑founded fear of persecution.  The appellant criticised the manner in which the Tribunal approached the issue whether the applicant was prosecuted because of his conduct.  The applicant accepted that the Tribunal correctly identified the manner in which it was required to determine whether the applicant had a well‑founded fear of persecution but submitted that the Tribunal had not adopted the correct approach in practice.  It was submitted that the Tribunal did not ask whether the detention of the applicant was for a Convention reason and that the Tribunal accepted that it was not improper for the applicant to be detained under a law of general application but that it did not turn its mind to whether the particular detention of the applicant was for a Convention reason.  It was put that the Tribunal closed its mind to the issue of the legitimacy of the detention and that the Tribunal had inverted its consideration by finding that if the applicant was detained, it was not improper for him to be detained under a law of general application.

31                  This analysis involves a misreading or misunderstanding of the Tribunal’s reasoning.  The Tribunal looked at the applicant’s claim in relation to his association with political organisations and found that it was not improper for the Jordanian State to detain him if he was suspected of being associated with organisations involved in acts of terrorist violence.  Such a finding did not involve any error of law.  In Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225, McHugh J said at 258:

“Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee.  A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens.  The enforcement of a generally applicable criminal law does not ordinarily constitute persecution.”

32                  I do not consider that the Tribunal made a finding that if the applicant had an association with the banned political parties, the Jordanian State was entitled to detain him under a law of general application and that it was not therefore necessary to consider the particular circumstances of his detention.  On a fair reading of the Tribunal’s reasons it determined that, as a matter of principle, it was not improper for the Jordanian State to detain the applicant if he was suspected of being associated with an organisation which resorted to terror.  The Tribunal added the caveat:

“although that detention should accord with proper and just legal processes and treatment.”

However, the Tribunal thereafter considered the applicant’s claims to have been detained on five occasions and made specific findings in relation to them, namely that he had not been detained.  The Tribunal did not commit any error of law in its reasoning process or in its analysis in relation to the issue of whether the applicant had been detained as he had claimed.

33                  The applicant further submitted that the Tribunal had also fallen into an error of law by failing to engage in reasonable speculation of the type contemplated in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Wu Shan Liang v Minister for Immigration and Ethnic Affairs (supra).  This has been colloquially described as the “what if I am wrong” consideration.  In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, Sackville J said at 241:

“In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons.  If a fair reading of the reasons as a whole shows that the RRT itself had ‘no real doubt’ (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.  Reasonable speculation as to whether the applicant had a well‑founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued.”

The applicant submitted that the Tribunal should have considered the possibility that its findings of fact might not be correct because of the manner in which it approached its reasoning.  The applicant pointed to the fact that in a number of passages the Tribunal expressed the view that certain circumstances were plausible.  For example, the Tribunal said that it was not implausible that the applicant could have been detained and that it was plausible that the applicant had attended lectures given by Leith Shubeilat, a well‑known and outspoken critic of the government.  Nevertheless, in the context in which these observations were made it is clear from the Tribunal’s reasoning that it reached clear findings and did not have any real doubt that its findings on material questions of fact were correct.  The Tribunal was therefore under no obligation to consider the matter on the basis that its findings of fact might not be correct.  In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 the majority of the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) said at 576:

“If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well‑founded fear of future persecution.

In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct.  That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant.  Once the Tribunal 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 Tribunal was not then bound to consider whether its findings might be wrong.”

This passage demonstrates that the Tribunal did not fall into error and was not required to consider whether its findings might be wrong.

34                  The applicant challenged the Tribunal’s consideration:

“whether the general context in Jordan is one where a real chance of persecution of the Applicant, or people of his ilk, is plausible.”

It was said that the Tribunal thereby treated the applicant as the same as other citizens of Jordan in its consideration of his chances of future persecution and did not give him the benefit of the doubt.  However, this observation was made after the Tribunal had made findings, and reached its conclusion, that it rejected the applicant’s particular claims as to persecution, namely his periods of detention.  The Tribunal did not fail to take into account the applicant’s particular circumstances. 

35                  The grounds of review relied upon by the applicant are not made out.  The application will be dismissed with costs.

36                  I wish to record the indebtedness of the Court to counsel for the applicant who appeared pro bono.  Counsel presented substantial written and oral submissions which assisted the Court in defining and resolving the issues for determination.  The community in general, and litigants in particular, are well served by counsel who appear pro bono and counsel are to be commended for their participation in the Court’s pro bono scheme.

Associate:

Dated:              13 November 2000