FEDERAL COURT OF AUSTRALIA

W140/01A v Minister for Immigration & Multicultural Affairs [2001] FCA 1813

Migration Act 1958 (Cth) s 476

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 cited

W140/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W140 of 2001

RD NICHOLSON J

18 DECEMBER 2001

PERTH

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

1                     The applicant seeks an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 April 2001.  The decision of the Tribunal affirmed a decision of a delegate of the respondent not to grant a protection visa (Class XA) to the applicant.  The application for review is brought in reliance upon s 476 of the Migration Act 1958 (Cth) (“the Act”). 

2                     These reasons have been prepared in a way designed to anonymise the applicant’s identity.

3                     The applicant is a citizen of country Z who arrived in Australia on 20 June 2000.  His application for a protection visa was lodged on 24 July 2000. 

4                     The applicant’s “core claims” were that he had a well-founded fear of persecution for reasons of political opposition to the ruling fundamentalist leadership, arising out of his refusal to obey orders as a member of the X paramilitary unit.  More specifically, the basis for his fear was:

“(a)     he failed to carry out orders in opposing and breaking up a student demonstration for which he was disciplined and awaits a military court hearing;

(b)           he assisted several other [X] prisoners from [X] unit to escape with whom he shared detention;

(c)           he fled the country illegally on a false passport and applied for asylum in Australia which itself would be regarded as an act of political criticism against the regime.”

Tribunal’s findings and reasons

5                     In its reasons for decision, which extends to 63 pages, the Tribunal made various adverse findings against the applicant.  Essentially these findings are:

(a)                the Tribunal accepted the applicant had been a member of the X from the age of 11.  The applicant’s brother had been killed in 1986 and the applicant joined the X youth movement as a member shortly thereafter;

(b)               the applicant was promoted to the intelligence unit of X after his military training in 1995, that he was “fully trusted” by his X superiors, that he said that he had mistreated people but that he tried to get away from doing so whenever possible.  The Tribunal said that it could not accept his evidence that he was able, with the knowledge of his colleagues, to refrain from participation in the abusive practices of that organisation;

(c)                so far as the applicant’s account of the X attack on university students in 1999, the Tribunal found it “implausible” that the applicant would have attended this demonstration if he had genuinely experienced disenchantment with the X, that he would suffer mental anguish once the X assault was in progress, and that the Tribunal was “not satisfied” that he attended this student demonstration, or if he did, that he abandoned his duties as claimed;

(d)               the applicant’s description of how he came to attempt suicide was “most unconvincing” and that the Tribunal was not satisfied with the explanation and his claim to have injured his wrist and chest in the manner that he described;

(e)                the applicant may have injured himself but that “the Tribunal was not satisfied that his injuries have any bearing on his claim for protection”;

(f)                 the Tribunal rejected the applicant’s claim that he had a genuine change of heart and mind about pursuing the aims of the X;

(g)                the applicant’s claim that he suddenly deserted his X colleagues in the middle of a X attack on student demonstrators and thereafter absenting himself for a week was “not plausible”.  Further, that there is no reliable evidence that the Revolutionary Court has summoned the applicant and in these circumstances the Tribunal is “not satisfied” that the applicant will face revolutionary court charges upon return to country Z;

(h)                the Tribunal was not satisfied the applicant would have placed himself in further  peril by conspiring with a prisoner to help him and three others escape from detention.  The Tribunal found this claim to be “far fetched” and it was not satisfied that this occurred nor that he obtained a false passport;

(i)                  the Tribunal was not satisfied with the “genuineness of the contents of the letter from the applicant’s sister” which referred to X people coming to the house and searching for the applicant following his departure from country Z;

(j)                 the evidence of two witnesses did not provide assistance to the Tribunal and in the case of one was not “credible”;

(k)               the Tribunal found that the applicant did not leave country Z on a false passport and that he left country Z on a valid passport in his own name;

(l)                  the Tribunal was satisfied that the applicant was not candid about a number of key aspects of his claims;

(m)              the country information indicates that asylum seekers from country Z who have exhausted all legal avenues can return and that the Tribunal was accordingly not satisfied that the applicant would face harm in consequence of having made an application for asylum;

(n)                the Tribunal is not satisfied it has been told the real reason for the applicant’s departure from country Z.

6                     The Tribunal’s reasons for rejecting the applicant’s claims were as follows.

As to the applicant’s involvement with X:

7                     The Tribunal said that it could not accept that he was able, with the knowledge of his colleagues, to refrain for many years from participation in the X’s abusive practices. 

8                     The Tribunal said that he would not have got promotion with the organisation had he not been fully co-operative.

9                     The applicant said that he was not keen from the age of 15 or 16 to work for the X but also said it was when certain elections occurred that he began to question all that he had been taught.  However, the incident that brought about the applicant deciding to leave country Z did not occur until two years later in July 1999.

10                  Apart from the inherent improbability that the Tribunal saw in the account given by the applicant, the Tribunal also had reservations about the manner in which the applicant gave his evidence.

Concerning the applicant’s alleged nervous breakdown:

11                  The Tribunal said that it found his failure to mention a nervous breakdown before the review hearing, and the several explanations offered for the failure of his suicide attempt, as unsatisfactory and “completely lacking credibility”.

12                  Although the applicant said in evidence to the Tribunal that he mentioned the circumstances of his attempted suicide to an interpreter privately, and that he claimed also to have mentioned it to an Australian security officer who promised, but failed, to mention it to the Immigration Case Officer, there was no support from the interpreter nor the former advisor that these events had occurred.

13                  It was accepted by the Tribunal that the truth of an attempted suicide was not central to the applicant’s claims but it could not be satisfied that this had occurred.

Concerning the circumstances of the applicant’s alleged departure from country Z:

14                  The Tribunal said that the applicant had left country Z using a valid passport in his own name.

15                  The Tribunal pointed to the anomaly that he took his X identity card out of country Z at the same time as he claimed that he left under a false passport.  The Tribunal also pointed to the DFAT country information report of 19 March 1999 which said that with so many different checks it would be impossible for anyone to bribe their way through an airport to effect departure.

Grounds of review

16                  The applicant has no legal training and efforts to find pro bono representation for him have not been successful.  Understandably, therefore he does not come to the Court with the ability to identify grounds of review falling within s 476(1) of the Act as matters which might attract the jurisdiction of this Court.  In common with many persons presently in detention in Australia and in the same position he brings matters which in essence seek to (impermissibly) have this Court reconsider the merits of the findings of the Tribunal and in particular to go behind findings of credibility made by it.  On the face of the matters brought by the applicant, no case for review is made out within s 476(1).  However, it is necessary to examine each of the matters raised by him and the responses to those matters given on behalf of the respondent to ensure that it is the case and to put the case brought by the applicant in perspective.

Reasoning on applicant’s submissions

17                  The applicant raised the following matters.

(1)               Applicant’s mistreatment of people

18                  The Tribunal referred to the applicant agreeing at one stage of his evidence during the hearing that he mistreated people while a member of the X unit but also stating elsewhere that he had never bashed, mistreated or hurt anyone, keeping true to a promise to his mother. The applicant contended that he had never said that he had hurt anyone and that a mistake had therefore happened in the reasoning of the Tribunal.

19                  The evidence of the applicant’s treatment was referred to in the course of reviewing the applicant’s involvement with the X unit.  The Tribunal found that the applicant was well disposed to the activities of the unit and an active and willing participant in them.  However, even if the Tribunal was mistaken that the applicant had agreed that he had mistreated people, its conclusion was based on other considerations.  They related to promotion which he received in the unit; the implausibility of him being allowed by his superiors to shirk his duty; and the lengthy periods of time and effort which he spent in the unit.

(2)               The applicant’s alleged suicide attempt

20                  The applicant disputed the Tribunal’s rejection of evidence to the effect that he had attempted suicide.  However, this was of no materiality to the Tribunal’s because its ultimate conclusion was that it could not rule out the possibility that the applicant may have injured himself in the past in other circumstances or that the injuries may have been received or inflicted in the course of his duties with the X unit.  In any event, the Tribunal was not satisfied that his injuries had any bearing on his claims for protection.  Therefore, although the Tribunal had written to the applicant putting to him that it had doubts as to the veracity of his claims concerning that he had “thought of suicide”.  The point was not central to the reasoning of the Tribunal in its ultimate determination. 

21                  The applicant also submitted that the Tribunal had failed to allow him to produce documents to prove his nervous breakdown.  Its reason for doing so was the same as in relation to the applicant’s attempted suicide, namely that further inquiry would not be productive because the matters did not have any bearing on his claims for protection.

(3)               Letter from applicant’s lawyer

22                  The applicant said that the Tribunal had failed to consider a letter from his lawyer referring to linguistic difficulties and other ambiguities in the applicant’s evidence.  However, the Tribunal was not obliged to refer to particular pieces of evidence.  Furthermore, its findings on the credibility of the applicant was based on its view of “several very important elements of his claims”.  That view was reached after the Tribunal had “given close consideration to [the submissions of the applicant’s lawyer] and the evidence of the applicant and his witnesses”. 

(4)               Absence of evidence of a summons

23                  In its reasons the Tribunal recorded that it had granted the applicant time, at his request, at the conclusion of the hearing to seek evidence or information of any court developments in relation to him from his family in country Z.  It also recorded that no such material had been provided to the Tribunal.  In particular, it said that the applicant had not provided any evidence of the issue of any court summons or charges.  This suggested to the Tribunal that he did not face such action.  Accordingly, the Tribunal concluded it was not satisfied the applicant would face Revolutionary Court charges upon return to country Z.

24                  The applicant contended that the Tribunal should have considered that due to the political situation in his county he could be arrested without a summons so that there would be no document to produce.  However, the position before the Tribunal was one which entitled it to reach the conclusions which it did.

25                   

(5)        Circumstances of departure from his country

26                  The applicant contended that while he had testified that he had left his country on a fake passport, he had not testified that the picture which was changed in it had been changed by him.  What he had said was that the picture was changed, not that he had made the change.  He submitted the Tribunal took the evidence wrongly and used it against him.

27                  Reference to the reasons of the Tribunal shows that the Tribunal was not categorical on how the photograph had been changed, referring to conflicting accounts.

28                  Additionally, in any event, the Tribunal’s conclusion that the applicant had left his country on a valid passport was based on other additional considerations.

29                  The applicant also maintained that the Tribunal should have inquired from Indonesia and Malaysia concerning his passage through there.  Even if the Tribunal had a duty to make such inquiries, which is not apparent, there are many more parallel links providing a proper foundation for the Tribunal’s conclusions which would have been unaffected by the outcome of such inquiry. 

(5)               Letter from applicant’s sister

30                  The applicant argued that it was inconsistent for the Tribunal to conclude on the one hand that his sister’s letter was forged but on the other hand to rely on cards sent by post from his country.  I accept the submission for the respondent that two issues attracted their own considerations and there is no inconsistency. 

31                  Furthermore, the Tribunal set out the contents of the sister’s letter and concluded that the author of the document had written the statements expressly with a view to enhancing the applicant’s claim to be a refugee.  It was entitled to draw that conclusion from the manner in which the letter was written.  In short, the letter attracted its own findings. 

(6)               Circumstances of return to his country

32                  The applicant contended that other persons from his country could have access to his papers in the detention centre and could have informed the embassy of this country of the contents of those papers.  There was no evidence to support that before the Tribunal or this Court. 

33                  Furthermore, there was evidence before the Tribunal, quoted in its reasons, being country information at which it was stated that “experience of other western countries has shown that the [country X] authorities are virtually not interested in the phenomenon of asylum seekers who have exhausted all other legal remedies” because “they seem to realise that western countries are only returning those persons (who have exhausted all legal avenues), who have gone thought a thorough procedure which ultimately determine that their request for asylum was not politically motivated”.  The Tribunal’s reasons had appropriate foundations in the evidence or other material before it. 

(7)               Documentation concerning applicant’s house

34                  The applicant contended that he could obtain information to show that he was a owner of a home in his country and that opportunity had not been given to obtain that evidence.  Such evidence, however, was not relevant evidence to the applicant’s case of having a well-founded fear of persecution for a Convention reason. 

35                  It follows from this consideration of the applicant’s submissions at the hearing that he did seek to have this Court reconsider the merits which were determined by the Tribunal.  That is impermissible to this Court:  Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at par [54] per Gleeson CJ and McHugh J.

36                  In any event, it would not be sufficient that conclusions of fact drawn by the Tribunal were regarded as unreasonable or seem to be unreasonable by another or that other minds would not necessarily have reached the same conclusion:  Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 at par 10 per Spender, Carr and Tamberlin JJ.  In this case the Tribunal reviewed the materials and the inferences to be drawn from them and the conclusions its reached were reasonably open upon those materials. 

Conclusion

37                  For these reasons I consider that the application must be dismissed.

Associate:

Dated:              18 December 2001