FEDERAL COURT OF AUSTRALIA

N989/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 434

MIGRATION – refugee – refusal of protection visa – application for review of Refugee Review Tribunal decision – applicant claimed to be courier for Palestine Liberation Organisation and subjected to regular interrogation by Syrian intelligence – whether Tribunal erred by failing to take into account relevant matters when assessing whether applicant faced real risk of persecution if returned to Syria – whether Tribunal incorrectly interpreted relevant law or applied the law incorrectly to the relevant facts

Migration Act 1958 (Cth) ss 5, 36(2), 65, 414, 476

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 cited

Abebe v Commonwealth (1999) 197 CLR 510 applied

Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 cited

Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 applied

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 applied

N989/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N989 OF 2001

LEE J

11 APRIL 2002

PERTH

THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal be set aside and the matter remitted to the Tribunal for redetermination.

2.                  The respondent pay the applicant’s 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 under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the respondent (“the Minister”) that the applicant not be granted a “protection visa”. 

2                     On 2 November 2000 the applicant, a Syrian national then aged 27, entered Australia’s “migration zone” by landing on Ashmore Reef in north-west Australia.  Under ss 13 and 14 of the Act, the applicant became an “unlawful non-citizen” upon entry.  Pursuant to ss 189 and 196 of the Act, the applicant was placed in “immigration detention” and has been kept there ever since.  The applicant at all material times required the assistance of an Arabic speaking interpreter.

3                     On 15 November the applicant applied for a protection visa.  Grant of the visa was refused by the delegate of the Minister on 5 January 2001.  On 11 January the applicant applied to the Tribunal for review of the Minister’s decision.  The Tribunal made its decision on 28 May.

4                     Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused.

5                     At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa:

“A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

6                     In s 5 of the Act, “Refugees Convention” and “Refugees Protocol” (together referred to hereafter as “the Convention”) are defined respectively as “the Convention relating to the Status of Refugees done at Geneva on 28 July 1951” and “the Protocol relating to the Status of Refugees done at New York on 31 January 1967”.  The term “protection obligations” is not defined in the Act and is not a term used in the Convention.

7                     The Convention is a treaty pursuant to which the “Contracting States” agree to apply the provisions of the Convention to “refugees”.  Sub-Article 1(A) of the Convention provides the following definition of “refugee”:

“For the purposes of the present Convention, the term ‘ refugee’ shall apply to any person who:…(2)…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…”

Limitations upon the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F).  It was not contended that any of the foregoing sub-Articles applied to the applicant.

8                     As a Contracting State, Australia has accepted the obligations at international law that arise out of accession to the treaty.  Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State.  All of the obligations so undertaken may be said to come within a broad meaning of the phrase  “protection obligations under the [Convention]”, but having regard to the purpose of s 36(2) the phrase refers to the direct, rather than indirect, obligations to protect a refugee imposed on Australia by the Convention.

9                     The hearing before the Tribunal was conducted by videolink transmission in which the Tribunal, the applicant’s agent and an interpreter were at the Tribunal’s premises in Sydney, whilst the applicant and a witness for the applicant were at a telecentre in Derby in north-west Australia.

10                  As discussed later in these reasons, the fate of the applicant’s application for a protection visa purportedly turned on an issue of credibility.  The Court has drawn attention from time to time to the need for the Tribunal to exercise caution before it makes any adverse finding on the credibility of an applicant for refugee status, bearing in mind, in particular, the difficulties that such an applicant may be experiencing, not the least amongst which may be the problem an applicant has in conveying the applicant’s case adequately to the Tribunal where the applicant does not speak English and relies upon the services of an interpreter.  In such a case statements, questions and answers are all subject to a choice of words in English according to the judgment of the interpreter and may be expressed as a summary or a paraphrase of words used in another language by the applicant.  In such circumstances it is not unknown for apparent inconsistencies to appear.  (See: W375/01A v Minister for Immigration and Multicultural Affairs  [2002] FCA 379 at [17] - [19].)

11                  Having regard to the material set out by the Tribunal in the written statement it has provided pursuant to s 430 of the Act, as its understanding of the interpreted responses of the applicant, there is every reason to assume that there was a lack of accuracy in the interpretation process.  The Tribunal record is replete with non-grammatical, incomplete and confused interpretations.

12                  The immigration officer, who interviewed the applicant eight days after his arrival in Australia, recorded the following summary of the applicant’s responses to questions as provided by an interpreter:

“WHY DID YOU LEAVE YOUR COUNTRY OF NATIONALITY (COUNTRY OF RESIDENCE)?

Syria: My father used to own a bus & I used to work for him as a driver I came to know people  (they belong to the Abu Amar organisation for the Liberation Palestine) I became part of this group.  They asked me to do jobs for them - like carrying documents for them in sealed envelopes - some times money.  One of the drivers who worked for my father introduced me to these people.  The liberation organisations are in conflict with the Baath Party in Syria - any activity by people in opposition parties are monitered [sic] by the Security - not to punish people just to spy on them.  The Intelligence people became interested in the driver - he ran away then they became interested in me every 25 days or so they would come & take me to their office & keep me there for a day - sometimes I would be blind fold me [sic].  They would come one day & tell you you have to report the next day - This went on for 2 years.  In late 1996 they (intelligence) came to the bus terminal they took me for 2 days - they beat me up and kept questioning me about the driver who ran away.  I was still working for the Abu Amar organisation.

The Abu Amar organisation was afraid I would eventually reveal important information to Syrian Intelligence - So they encouraged me to go to Lebannon [sic].  They said there were people there I could work with but I did not work for Abu Amar in Lebannon [sic] because I knew that Syrian Intelligence is just as strong as in Syria its self [sic].  Even though I did not work for them they assisted me to leave Lebannon [sic] because they did not want me to go back to Syria & What did you know about Abu Amar organisation that they were so afraid you would reveal?[sic]  I knew where their meeting places were & how they organised their meetings.  Abu Amar Organisation tried to keep me in Lebannon [sic] - They wanted me to work for them but I was scared & objected to working for them so they decided it was best I leave they introduced me to some one who could organise a passport for me.  The smuggler told me the only option was to go to Indonesia and then maybe Australia.

Did the Abu Amar organisation threaten you?  Well you could say that they did but in a very polite way in a manner of speaking - they suggested to me that if I did the wrong things I may not be safe.

What would have happened if you stayed in Lebannon [sic].

In Syria I did not belong to the Baath Party this makes me vulnerable also in Lebannon [sic] it is the same.

The other problem is that the Abu Amar no longer trust me - they did while I worked for them but when I came under pressure from the Syrian Intelligence they no longer trusted me.

These are the reasons I left Syria & Lebannon [sic].

They use [sic] to ask me where I used to go when I worked for the Abu Amar organisation - who I knew but most of all they were interested in the driver.  I always used to say I did not know anything - this is why they continued to harrass [sic].  Because of the continued pressure & the beating I left Syria.  I still support the Abu Amar organisation because of the Palestinian situation.  I have not had any contact with other members of the Organisation since I left Lebannon [sic] in 1998 - they helped me leave Lebonnon [sic].

…

DO YOU HAVE ANY REASONS FOR NOT WISHING TO RETURN TO YOUR COUNTRY OF NATIONALITY (RESIDENCE)?

All the reasons I mentioned before - because the Syrian Intelligence are always harrassing [sic] me - if I return back it is possible the Abu Amar people may create problems for me.

…

            Please give details of your association or involvement with any political group or organisation

Abu Amar organisation - worked for them for 5 years from 1992 to 1997.  Worked as a courier - documents money also weapons internally in Syria.  I used to attend the meetings towards the end of me [sic] membership - I met Awad Abu Alil - he was the leader of the group  & worked for my group was based Mokhaim Palestinian Camp close to Damascus.”

13                  The applicant submitted the following account in support of his application for a protection visa in November 2000:

“1.       I have a fear of persecution because of my political opinions and involvement with the PLO [Palestine Liberation Organisation].

2.         After I completed my military service in October 1992 I started to work in the family business as a bus driver.  I was working on the road between the Alsuwaida Province and Damascus Province.

3.         Between those two provinces there was the PLA army camp.  The bus driver, [bus driver’s name], who I was working with as assistant, was already involved in the PLO and he was organised by the PLO members.  Through the bus driver I became involved in the PLO.  After a while this bus driver was discovered by the Political Intelligence forces and was detained, interrogated and beaten.

4.         I was also questioned about the bus driver approximately every two months by these officials.

5.         In 1995 when I took over and became the bus driver [sic].  [The bus driver] escaped.  Once every 20-25 days I was interrogated again after this event.  In the beginning they would keep me the whole day, ask me about the bus driver and ask me to leave.  They would call me every 20-25 days for questioning and ask me questions about the bus driver.  My links continued the PLO [sic].

6.         I was helping the PLO assisting with transporting post, money, One of the executives of PLO [executive’s name] once gave me a box and the box had a pistol in it and was hidden amongst cigarettes to be handed over to other PLO members.  They did not tell me the box had a pistol in it and I did not find out until I delivered it.  The political intelligence continued to call me for questioning.

7.         Sometimes I would help the PLO by transporting members wanted by the Syrian Government.  I would take them to Damascus to Alsuwaida or Aldara province (there are check points but I knew the times they would not be open).

8.         At the beginning when I was called by the intelligence I was not beaten - just questioned.   About a year later from the date I took over as bus driver the pressure increased on me.  The intelligence started beating me and abusing me and said you are not giving us information because you yourself are supporting PLO and are involved with them.  The PLO members needed support and help.

9.         Because of the fear, pressure, insults and abuse I reduced my support to the PLO.  The PLO sensed that I had reduced my support and I was telling them that their [sic] was pressure on me when they asked me to do certain things.  They would tell me for the sake of the Palestinian cause it was necessary for me to help.  I was trying to be patient.  The PLO started being scared of me.

10.       The PLO wanted me to do jobs for them every 2 weeks but I was reluctant to do it.  If I did not turn up on the required day they would come to me.  The PLO were telling me that I had to sacrifice and they would support me.  When you get problems however I knew that they could do nothing to protect me from the intelligence.

11.       When I told them that I couldn’t go on like this and I could not stand it anymore.  They took me to a house to watch a video on the Palestinian cause and the assassination and suicide operations and said watch it and try to understand it.  If you do not want to support us it is ok but you will be under pressure from the political intelligence and then you will give information about our whereabouts and our activities and if we ever get into trouble with the authorities or if they attack us, you will be the prime suspect and be primarily at risk.

12.       They threatened me because at one stage there were some terrorist attacks on buses in Syria.  They indicated that if I tried to play games with them they could take a terrorist attack on my bus or subject any member of my family to attack.  Because of this pressure and threats from them I continued my support to PLO but not like before.

13.       I would find excuses every now and again and they would ask me to do jobs for them every month.  A few more times I assisted the PLO.  This was now March 1997.

14.       The interrogation by intelligence continued every 25 days.  In May 1997 one time I was supposed to see them I did not turn up as I was working somewhere else.  They came to the bus station and I was beaten up in front of people at the bus station.  While they were beating me someone hit me with a machine gun butt and I fainted and when I woke up I was at the headquarters.  They poured water on me.  I was blindfolded.

15.       At the headquarters I was beaten up again, detained for 2 days and released.  Because of this beating I feared for my life.  Whenever I was working as a bus driver and saw people in uniform I was scared.  I stopped working for the PLO after this incident.  I wanted to completely cut links with the PLO.

16.       The PLO told me they would smuggle me out and a PLO organization in Lebanon would provide protection for me.  The PLO organised the departure for me and I did not get out of the car at the border.  They told me later they had spent money on me but I do not know what they did.

17.       When I got to Lebanon I found out they not want to help me.  They wanted me to co-operate with them but I said I was tired and not ready yet.  Eventually they felt that I was not going to co-operate and I was going to go back to Syria and hand myself over to intelligence.  The PLO wanted to get rid of me.  They said that if you want to live overseas we will help you with a false passport and you can leave or you will be at risk at any moment in Lebanon by the PLO group.

18.       I said I wanted to leave and they helped me obtain a false passport and I flew to Indonesia.  The PLO said they would contact the smugglers but they did not do this.  I waited to find a smuggler but people told me the smugglers were liars and I did not know what to do then.  I met an Indonesian person who I worked for and I went back to Jakarta.  The smuggler was charging people $2500 to come to Australia but I did not have this money.  I waited to be confident enough to trust the smuggler and that the trip would be guaranteed.  I borrowed money from Indonesians and friends.

19.       I fear returning to Syria as I would either get life time imprisonment or would be killed by the PLO.”

14                  The applicant’s claims, as put to the Tribunal by the migration agent acting on behalf of the applicant, read as follows:

“The applicant is a 27-year-old single Syrian from a Druze family in the village of Shahba in Al Suwaida.

He left high school early then undertook his compulsory military service and after discharge in 1992 found work as an assistant to a bus driver in the family transport business.  The route his bus took went pass [sic] a Palestine Liberation Organisation (PLO) military camp and he soon discovered that the PLO had recruited the bus driver as a courier for them.  It was on this job that he first came to the attention of Syrian Intelligence who took the bus driver and the applicant in for interrogation in 1994.

In his case the interrogation was at first benign but persistent - every 20-25 days he spent a day with Syrian Intelligence.  But in 1994/1995 they arrested the bus driver.  He escaped and the PLO approached the applicant who took over as the driver on that bus run.  He resisted at first but was persuaded even though he knew he was still under Syrian Intelligence surveillance.  His regular visits were still required - and continued right up to May 1997.  Then the Intelligence interrogators started meting out persecutory treatment during the interrogations, claiming the applicant knew where the missing bus driver was hiding.  He was treated in a private clinic for what the staff thought were traffic accident injuries.

By now he was deeply involved with the PLO ferrying documents, money, mail and small packages one of which he found out contained a pistol.  Occasionally he carried PLO fugitives wanted by the Syrian Intelligence.

As the persecutory treatment by the Intelligence at his regular meetings intensified he decided to escape and the PLO after issuing some threats to heighten his fears said they would help him to get to Lebanon.  After a bad episode which started with a public beating and arrest and ended with detention for two days, he became deeply fearful of arrest and more interrogation under heavy torture and he approached the PLO.  That organisation arranged for him to go to Lebanon.  He spent some 12 months there before deciding to seek a safe haven away from the Middle East and in October 1998 he went to Indonesia using a false Lebanese passport arranged by his PLO contacts who released him from his obligations to them.

He stayed there two years illegally, working also illegally… until he had saved enough to finance an escape to Australia as a boat person.  He arrived in Australia in November 2000 and sought Australia’s protection.  He was permitted to lodge an application for a protection visa on November 15 and had an interview with his case officer five days later.  He was rejected, as noted, some two months later.

…

HIS CORE CLAIMS

[The applicant] claims to have a genuine and well-founded fear of persecutory treatment by the Syrian Intelligence authorities for reasons of imputed political opposition.

The grounds for these fears are:

1.         He has a genuine subjective fear of persecutory treatment for reasons of imputed political opposition because of

            (a)        his frequent summmons [sic] for questioning culminating in interrogation with torture as a bus driver over his involvement with the PLO as a courier and his knowledge of the Syrian bus driver with whom he initially worked as an assistant and who had become a fugitive from Syrian Intelligence;

            (b)        His illegal departure from Syria into Lebanon without a passport or an exit permit and with the aid of the PLO which has strained relations with Syrian Intelligence - which would earn him at least three months imprisonment while they checked out his record and further interrogated him;

            (c)        his illegal departure from Lebanon this time with a false passport, once again with the aid of the PLO - sufficient to ensure that he would be arrested if he were returned to lebanon [sic] and immediately deported to Syria into the hands of Syrian Intelligence, and

            (d)        his seeking of asylum in Australia which carried with it the implication of vilification of the Syrian regime, and therefore seen as a further act of political criticism.

2.         They are well-founded fears of persecution, given

            (a)        the well-established and well-documented behaviour of the dreaded Syrian Intelligence and the fears of that authority held by all Syrians, as recorded in a variety of Country Information reports.

            (b)        the general crackdown by the Syrian regime on all and any suspected political opposition that began in late 1999 as the ruling Syrian regime prepared for the transition in the leadership from the father to the son, Bashar Al-Assad, and which continues since the unexpected death of President Hafad in April 2000 and the accession of Bashar to the presidency.

3.         The treatment feared is clearly persecutory in that

            (a)        being returned undocumented either to Lebanon or directly to Damascus would immediately bring him to the attention of the Syrian Intelligence.  He would be detained and harshly interrogated on why he was being returned from Australia.  His file would be obtained and it would quickly be noted that firstly there was no record of an exit visa having been obtained and secondly that he had disappeared after the continuous suspicions of the security authority in his relationships and suspected services as a bus driver with the PLO.

            (b)        his treatment in Syria would once again involve at the best extended detention and sessions of harsh interrogation under torture as a matter of routine

            (c)        it is not a remote possibility that it could lead to extended imprisonment without trial or even extra-judicial execution by the increasingly intolerant Syrian Intelligence…”

15                  In its written statement, the Tribunal set out how it dealt with those claims, and its ultimate conclusion on the applicant’s visa application under the heading “FINDINGS AND REASONS”:

“The applicant’s claims involve a series of claims which are in themselves each unlikely and in total implausible.  The Tribunal’s views about his credibility are strengthened due to his uncertainty about when and how often he was detained and the other dates of critical events in his claims.

Claim one - the circumstances in which he became involved with the Abu Ammar Fatah

The first claim that raised doubt concerned the circumstances in which he became involved with the Abu Ammar Fatah (Arafat’s Fatah) organisation.  It is most unlikely that a Syrian Druze would commence working for the PLO and the Abu Ammar Fatah organisation in particular - as it is apparently a Palestinian organisation and in fact the Abu Ammar or Al Fatah may not have representation in Damascus and if they do, it is very small.  What is clear is that Arafat’s group has not been able to freely operate in Syria due to a long standing political disagreement over the issue of the peace with Israel and the creation of a Palestinian state.

The Refugee Review Tribunal had previously approached the General Palestinian Delegation in Australia for information on whether “Al-Fatah has an Occupied Territories Office in Damascus” (RRT, 2000, Al-Fatah in Syria, Fax to General Palestinian Delegation to Australia, 22 December )

The Head of the Delegation responded:

            to my knowledge Al-Fatah has no office nor official representative in Damascus but the splinter group has, but this of course does not represent Al-Fatah.

            However, the PLO has an official representative office in Damascus which represents the Palestinian people and the Palestine National Authority (General Palestinian Delegation, 2001, Fax 02 9951 5889, Fax to RRT, 2 January ).

Claim two - his frequent detentions, and that he decided nevertheless to join the Al Fatah

The Tribunal found it very extraordinary that he told the Department that he was taken every 25 days to be detained by the Syrian authorities before he had any significant involvement in the PLO organisation.  It is remarkable that he did not tell his father - who was a Syrian business man.  His explanation about why he did not tell his father was not convincing.  His father might have been able to assist and advise him.  It is the more astonishing that he started to work for the PLO after he came under the notice of the Syrians.  It is most unlikely that he would increase his risks by getting involved in the PLO when he knew that the Syrian authorities were monitoring him.  His account of the bus driver returning the bus key before fleeing also seemed to be implausible as it would have increased the risk to the bus driver of being caught is [sic] the applicant’s father had reported him to the authorities.

Claim three - when did the bashings begin?

The number of times the applicant was detained was startling and implausible given the basis of his claims.  He maintained before the Department that they would detain him once every 25 days over a period of years.   The Tribunal is of the view that the interview with the Department indicates he was not clear about when they stopped simply keeping him in the room and not asking him anything (as he claims) and when they started to accuse him of supporting the PLO and to put ‘ pressure’ on him.  In his statement of November 2000 he states that in the beginning he was not beaten and it was about a year after he took over as a bus driver in 1996 the ‘ pressure’ increased on him and they started to beat him.  However at the interview with the Department he claimed that the bashings started when the bus driver escaped (which according to his November 2000 statement was in 1995).  He eventually told the Department that he was first beaten March 1996.  There was considerable confusion about when the driver, [driver’s name], was arrested and later escaped.  He told the Department that he [the driver] was first arrested in mid 1994 and that he [the applicant] started his relationship with the PLO in 1995 after the driver escaped.  So it is not clear when [driver’s name] took over as a bus driver or whether the beatings started at that time or a year later, or when he first met the PLO and got involved.

Any involvement with the PLO

The Tribunal is not satisfied that the applicant has had any involvement with the PLO in Syria.  The Tribunal has formed the view that the applicant does not have any significant knowledge of the PLO and its structures in Syria and this suggests that he has not had the involvement that he claims in that organisation - even accepting that he was only a courier and a go-between.  The Tribunal also found it surprising that the Palestinian organisation would have trusted a Syrian national.  Further it was most problematic and implausible that the PLO would have continued to use him in any way once they knew that the Syrian intelligence were interviewing him.  He has no documentary evidence to support his claim of an association with the PLO.   If the PLO knew him and were aware that he could face return to Syria they could have provided him with some documents to assist him in his application for protection.  He has not provided any such evidence.

The applicant was confusing about when he joined the PLO - or in fact if he ever did.  He told the Tribunal that he had a meeting in 1993 with some people who had ‘ posed as friends’.  However, he told the Department that his relationship started in 1995. 

The applicant’s claims about whether the PLO helped him get out of Lebanon was to say the least confusing and contradictory.  In his statement of November 2000 he stated that the PLO helped him get a false passport and he flew to Indonesia.  He told the Tribunal that the PLO did not help him come to Australia and he used a smuggler.  The Tribunal has considered that he may have meant that the PLO helped him to get out of Syria to Indonesia but not to get to Australia.  However the Tribunal notes that he was also confusing about his relationship with the PLO in Lebanon.  He told the Tribunal that the PLO might force him to work with them or they might turn him over to the Syrians.  In his November 2000 statement he appeared to be saying that the PLO were frightened that he would hand himself over to the Syrians and that was why they decided to help him leave the country.  He did not explain consistently why the PLO would have helped him to leave Lebanon - if they did do so.  The Tribunal is not satisfied that the applicant has been truthful on this issue of the PLO assisting him to leave either Lebanon or Syria.

Faxed letter from the applicant’s brother

As for the letter apparently sent by his brother on 16 May 2001 to the applicant’s adviser’s office, the Tribunal is not satisfied that it is authentic or if from his brother, that it has not been concocted.  The Tribunal is not aware of any reason why the authorities, so many years after the applicant left Syria, would start harassing his family.  Apparently the news is recent - as the applicant states that he has news and by reason of his decision to send a fax.  It is highly unlikely that the authorities would know that he is in Australia - he had previously spent a lengthy period in Indonesia and he has not returned to Syria.  The timing of the fax’s transmission is suspicious - as the applicant left Syria sometime in late 1997 (according to the applicant) and may have been timed to coincide the making of a decision in this case.

Witness’s testimony

The Tribunal was not satisfied that the applicant’s witness’s evidence advanced his claims to any significant extent.  He had never known the applicant in Syria.  The witness was not able to explain why he thought the authorities were interested in the applicant.  He said that he heard that he was wanted by the authorities.  It is possible, though the Tribunal has severe doubts, that the applicant is wanted by the authorities in Syria as his witness claims.  However the Tribunal is not satisfied that if he is wanted that it relates to his political association with the PLO or any other Convention related reason.

Other Findings

The Tribunal is satisfied that the applicant has not been truthful.  The Tribunal finds that the applicant is a Syrian national.  It is not satisfied that he has or has had any association with the PLO or that he ever acted as a courier for the organisation.  The Tribunal is not satisfied that he has ever been detained by the authorities in Syria in the circumstances that he has claimed and is not satisfied that he was ever bashed and tortured as he claims.

The applicant does not have a well founded fear of persecution for a Convention related reason.”

16                  It is necessary to undertake an analysis of the reasons of the Tribunal in order to ascertain how the Tribunal made its determination in this matter.

17                  As noted earlier, before making an adverse finding on credibility upon which the decision of the Tribunal is grounded, the Tribunal must have due regard to, and certainly not ignore, problems inherent in attributing to an applicant who does not speak English, contents of an account in English provided by an interpreter according to his or her understanding of the English equivalent of the questions asked and of the responses received.  Further, the Tribunal must keep in mind that any record made by an immigration officer may be a summary of the interpreter’s words.  In addition, the Tribunal must be aware of the multiple factors that may affect an applicant for refugee status and may cause actual, or apparent, inconsistencies to arise in an applicant’s accounts, but not justify rejection of the applicant’s claims.

18                  Furthermore, where the Tribunal conducts a hearing by videolink transmission and the applicant is before the Tribunal only by image on a monitor, and the interpreter is not present with the applicant, there will be little scope for the Tribunal to draw conclusions on credibility in so far as those conclusions rest on considerations of demeanour and responsiveness on the part of the applicant.  Indeed, in this matter the Tribunal purports to express a view upon the applicant’s credibility based on apparent inconsistencies between his accounts, or lack of certainty in his recall of dates, and not on the manner in which the applicant conducted himself before the Tribunal.

19                  I turn now to consider the particular elements of the Tribunal’s findings. 

20                  First, the Tribunal said that each of the applicant’s claims was unlikely.  If by that, and the Tribunal did go on to say that in total they were implausible, the Tribunal meant that each claim was inherently unlikely and beyond any expectation based on human experience then, plainly, the Tribunal would have erred in law.  There was nothing inherently unlikely in the applicant’s description of the manner in which: 

(a)        he came to render service to the PLO, or a faction thereof, as a courier;

(b)        Syrian intelligence became interested in him; and

(c)        Syrian intelligence dealt with him.

If the Tribunal meant to say no more than it was not satisfied on the material before it that these events had occurred as a matter of likelihood, then that was open to the Tribunal.  However, that did not dispose of the Tribunal’s obligation to consider possibilities of past occurrences when determining whether there was a real chance of persecution occurring in future.  I will refer to the relevant law later in these reasons.

21                  The Tribunal then said that its views about the applicant’s credibility were “strengthened due to his uncertainty about when and how often he was detained and the other dates of critical events in his claims”.  It is to be assumed that “dates of critical events” are those identified in subsequent paragraphs of the Tribunal’s reasons with which I will deal in due course. 

22                  With regard to the statement that the applicant was “[uncertain] about when and how often he was detained”, the record of the interview conducted with the applicant shortly after his arrival stated that when he took over as the bus driver in 1995, at first Syrian intelligence would attend at the bus depot every “25 days or so” and take him to their office for interrogation.  Later the officers would attend the depot and tell the supervisor that the applicant was required to attend the office of Syrian intelligence.  That would be once every 20 to 25 days.  The applicant said that in November 1996 he was taken from the bus depot by Syrian intelligence, detained for two days and beaten.

23                  The applicant’s statement in support of the application for a protection visa was, in large measure, consistent with the record of the first interview, although in the later account the applicant stated that it was in May 1997 that he had been taken by Syrian intelligence from the bus depot, detained for two days and beaten.

24                  Thus the Tribunal’s statement that its “views about his credibility are strengthened due to his uncertainty about when and how often he was detained” had little support in the material before the Tribunal.  In any event, the obligation remained for the Tribunal to consider that material in due course in determining whether it was possible events had occurred as claimed by the applicant and whether a real chance of the occurrence of future persecutory events was raised by the material as a whole. 

25                  The Tribunal said that “doubt” attended the “circumstances in which [the applicant] became involved with the Abu Ammar Fatah (Arafat’s Fatah) organisation”.  The “doubt” was said to be raised by the unlikelihood that a “Syrian Druze” would begin working for the PLO and, apparently, by the inability of the “Arafat group” to operate freely in Syria. 

26                  With regard to the first point, it was not open to the Tribunal to conclude that a Syrian would not act in support of the Palestinian cause.  The Tribunal, therefore, must be taken to be stating a doubt it held.  Obviously it was not saying that it had no real doubt and had formed a positive conclusion which negated the fact alleged.  With regard to the operation of Al-Fatah in Syria, the absence of official representation or recognition in Syria would have no bearing on whether that organisation operated clandestinely, in the manner described by the applicant.  The Tribunal, therefore, had not purported to establish a foundation for rejecting the applicant’s claims about how he came to render services to the PLO.

27                  The Tribunal then stated that it “found it very extraordinary that [the applicant] told the Department [of Immigration and Multicultural Affairs] that he was taken every 25 days to be detained by the Syrian authorities before he had any significant involvement in the PLO organisation”.  That misstated the applicant’s claims.  As set out above, the immigration officer who conducted the first interview with the applicant recorded that the applicant had said that he had been introduced to the “Abu Amar Organisation for the Liberation [of] Palestine”  by the bus driver he replaced.  In the submission in support of the application for a protection visa, the applicant said that “the bus driver, [driver’s name], who I was working with as assistant, was already involved in the PLO and he was organised by the PLO members.  Through the bus driver I became involved in the PLO”.  The applicant told the Tribunal that he commenced as assistant to that driver in early 1993.  In the above submission the applicant said he was questioned by Syrian intelligence about that bus driver approximately every two months (i.e. before the applicant took over as driver).  When the applicant took over in 1995, he was on a reporting and interrogation cycle with Syrian intelligence every 20 to 25 days.    What the Tribunal meant by “any significant involvement” is unknown, but it appears that the Tribunal misread the material before it.

28                  In its statement the Tribunal recorded that at the “Departmental interview” (which may be assumed to be the interview conducted on 20 November 2000 by the delegate) the applicant had said “every 25 days [Syrian intelligence] would take him for investigation from 1994 until May 1997”.  The recorded summary of that interview was not included in the papers of the Minister presented to the Court, but if the Tribunal purported to rely on an understanding it obtained from that material, I note that the “Decision Record” made by the delegate, which is included in the papers, stated that “in interview” the applicant said he had been called to the offices of Syrian intelligence every 20 to 25 days from early 1995 to May 1997.  That was consistent with the initial interview, the submission in support of the applicant’s visa application and his evidence to the Tribunal.  The Tribunal said that it found it “very extraordinary” that the applicant told the delegate that he had been under regular interrogation by Syrian intelligence before he had “any significant involvement” with the PLO.  As set out above, it appears that the Tribunal misunderstood the material before it in that regard, but, in any event, the mere notation of what appeared to the Tribunal to be an inconsistency between an aspect of the applicant’s account to the delegate and an earlier account, did not become an affirmative finding, on probative material, that the applicant had no contact with the PLO.  At its highest, the comment by the Tribunal amounted to an expression of doubt that an event as described had occurred.

29                  The Tribunal then said it found “[i]t…remarkable that he did not tell his father – who was a Syrian business man.  His explanation about why he did not tell his father was not convincing”.  The Tribunal’s written statement does not record that it raised this issue with the applicant and, therefore, does not record the applicant’s explanation.  Perhaps the Tribunal relied upon the record of  interview prepared by the delegate, which, according to the Tribunal’s account thereof, included the following:

“The Syrians arrested him every 25 days for one day and did not ask him anything but before the end of 1994 they began to ask him about a driver and who he was working with.  They did not harm him during these interviews.  He spoke to his father about this.  He said he did not tell him anything because he would not put up with such things.  It was unclear why he would not have told his father.  He said that he was scared of his aged father.  He said that his father would blame the problem on his mother.  He said that was the Arab way.  He said that the most important thing is not to have a problem with the state.”

The “Decision Record” made by the delegate, however, did not refer to or rely upon such material. 

30                  No basis was identified upon which the Tribunal could state that, because the applicant had not told his father that he was using the bus to provide a courier service for the PLO from time to time, it must be concluded that the events claimed by the applicant had not occurred.  The Tribunal’s statement that it was “remarkable that he did not tell his father” is to be taken to be an explanation by the Tribunal as to why it remained unpersuaded as to the applicant’s account, and not an affirmative finding, based on the absence of any real doubt, that the claimed event had not occurred.

31                  The Tribunal then states that:

 “[i]t is the more astonishing that he started to work for the PLO after he came under the notice of the Syrians.  It is most unlikely that he would increase his risks by getting involved in the PLO when he knew that the Syrian authorities were monitoring him.”

The first point to be noted about this passage is that it misstates the claims made by the applicant.  The material before the Tribunal showed that the applicant had become involved with the PLO well before he came under the notice of Syrian intelligence.  The applicant claimed that he had been introduced to PLO operatives in early 1993 by the driver who preceded him.  He assisted that driver to provide a courier service for the PLO.  He carried on that work on his own from early 1995 to May 1997.

32                  In so far as the likelihood of the applicant continuing to provide a service to the PLO after Syrian intelligence began applying pressure to him had to be considered, that required assessment of what control, if any, the PLO had over the applicant, or the extent to which the applicant may have thought that the Palestinian cause was just and deserving of support.  Putting to one side the Tribunal’s misunderstanding of the nature of the applicant’s claims, the statement by the Tribunal that the claimed events were “astonishing”, served to explain why the Tribunal was not persuaded that the events had occurred as claimed.  It was not an affirmative finding, on probative material, that the claimed events had not occurred.

33                  In concluding its discussion of “Claim two”, the Tribunal stated that the applicant’s “account of the bus driver returning the bus key before fleeing also seemed to be implausible as it would have increased the risk to the bus driver of being caught [if] the applicant’s father had reported him to the authorities”.  The Tribunal’s reasons do not record that this issue was raised with the applicant.  No facts were established by the Tribunal on which it could be said that the event could not have occurred.  On its face, there was no inherent improbability of the applicant’s account.  The Tribunal, in stating that it “seemed to be implausible” is to be taken to be expressing doubt as to the occurrence of the event, not a positive finding that the event did not occur. 

34                  The Tribunal then dealt with what it described as “Claim three - when did the bashings begin?”  Again the Tribunal’s reasons appear to be based on a misunderstanding of the material before it.  The Tribunal stated that the applicant maintained before the “Department” that they would detain him once every 25 days over a period of years.  In the initial interview conducted by an immigration officer after his arrival in Australia, the applicant said that he had reported to Syrian intelligence for two years.  The applicant’s statement in support of the application for a protection visa said that from 1995 to May 1997 he had continued to report.  The delegate’s “Decision Record” stated, incorrectly, that in that statement the applicant had said that he had been summoned by Syrian intelligence between early 1995 until “March 1997”.  The delegate stated, however, that “in interview” the applicant had said that he had been summoned from early 1995 until May 1997.

35                  I note that in describing the material before it, the Tribunal said that the applicant had told the “Department” that he was interrogated every 25 days “from 1994 until May 1997” and that the delegate had asked the applicant if he had been “detained for some 75 days”.  As set out above, the “Decision Record” of the delegate did not support that account. If the summary of interview prepared by the delegate said otherwise, then the delegate did not rely upon it.

36                  The Tribunal said it was “of the view that the interview with the Department indicates he was not clear about when [Syrian intelligence] stopped simply keeping him in the room and not asking him anything (as he claims) and when [Syrian intelligence] started to accuse him of supporting the PLO and to put ‘ pressure’ on him”.  In the first interview it was recorded that the applicant said that the obligation to report to Syrian intelligence went on for two years and that “because of the continual pressure and beatings I left Syria”.  The applicant is recorded in that interview as saying that he left Syria for Lebanon in May 1997.  The applicant’s statement in support of the application for a protection visa stated that he took over as the bus driver in 1995 and about a year later Syrian intelligence officers started beating and abusing him when he reported to them, and that this continued until May 1997.  The “Decision Record” of the delegate recorded that the applicant had said that he had been beaten when reporting, from March 1996 until “May 1996”.  The latter date appears to have been recorded incorrectly given that the delegate had already recorded that the applicant had said “in interview” that he was summoned by Syrian intelligence until May 1997.  But for the date, “May 1996”, all of the foregoing accounts may be said to have been consistent.

37                  The one inconsistency that does appear, not referred to by the Tribunal, is that in the typewritten application for a visa, prepared by his agent, the applicant is said to have left Syria for Lebanon in November 1997 whereas, as noted earlier, in the first interview that date was recorded as May 1997.  The content of the submissions in support of the application is consistent with the date recorded at the first interview, namely May 1997.  The “Decision Record” of the delegate, however, recorded that the applicant departed Syria for Lebanon in November 1997.

38                  The Tribunal then said:  “There was considerable confusion about when the driver…was arrested and later escaped.  He [the applicant] told the Department that he [the driver] was first arrested in mid 1994 and that he [the applicant] started his relationship with the PLO in 1995 after the driver escaped.  So it is not clear when [driver’s name] [sic] took over as a bus driver or whether the beatings started at that time or a year later, or when he first met the PLO and got involved.”

39                  Two points arise from this passage.  The applicant’s account as recorded at the first interview did not specify when the first driver was arrested but was otherwise consistent with that event occurring in early 1995.  The applicant’s statement in support of the application for a protection visa said that the applicant took over as the driver in 1995.  The “Decision Record” of the delegate stated that the applicant had said in his statement, and “at interview”, that the previous driver had been arrested in 1995.  In the same paragraph the delegate stated that the applicant had said in his statement, and “at interview”, that he “became involved in the PLO whilst driving his father’s bus after the previous driver was arrested by the Intelligence authorities in 1995”.  The applicant’s statement, and the record of his interview after arrival, both state clearly that the applicant had become involved with the PLO by being introduced thereto by the previous driver in 1992 or 1993 and that he assisted the previous driver in that regard for several years.  The “Decision Record” of the delegate must be read as a statement that the applicant became involved on his own account when the previous driver departed in 1995, and not that he became so involved for the first time. 

40                  What material the Tribunal relied upon for its statement that the applicant “told the Department” that the driver was first arrested in mid 1994 is not clear.  Although the submission to the Tribunal from the applicant’s agent, recited earlier in these reasons, stated that “in 1994/1995 they arrested the bus driver” the clear import of the material before the Tribunal was that the applicant took over as the driver in the earlier part of 1995, that he was first beaten by Syrian intelligence in early 1996, and that he first became involved with the PLO in 1992 or 1993.  In any event, the reasons of the Tribunal convey no more than the doubt in its mind about what events occurred, or when they occurred, and do not recite an affirmative conclusion, without any real doubt, that the events claimed by the applicant had not occurred.

41                  The Tribunal then proceeded with a separate consideration of the aspects of the applicant’s claims and stated that it was “not satisfied that the applicant had any involvement with the PLO in Syria”.  The reasons provided in that regard repeated, in large measure, the reasons of the Tribunal discussed above, but added the following:

“[the applicant] has no documentary evidence to support his claim of an association with the PLO.  If the PLO knew him and were aware that he could face return to Syria they could have provided him with some documents to assist him in his application for protection.  He has not provided any such evidence.”

42                  If, by the foregoing, the Tribunal understood that the applicant had to prove that he was truthful or had to satisfy an evidentiary onus before the applicant’s account could be considered by the Tribunal in assessing the degree or risk of persecution facing the applicant if he were returned to Syria, that approach would have involved an error of law.  (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [83].)

43                  From the context of the reasons as a whole, and having regard to the material before the Tribunal, properly understood, the statement of the Tribunal that it was “not satisfied” that the applicant had any involvement with the PLO in Syria is a statement that the Tribunal was not persuaded by the material before it to reach an affirmative conclusion that such events had occurred.  The Tribunal did not decide affirmatively, on probative material, that such events had not occurred. 

44                  The Tribunal then stated that:

 “The applicant’s claims about whether the PLO helped him get out of Lebanon was to say the least confusing and contradictory.  In his statement of November 2000 he stated that the PLO helped him get a false passport and he flew to Indonesia.  He told the Tribunal that the PLO did not help him come to Australia and he used a smuggler.  The Tribunal has considered that he may have meant that the PLO helped him to get out of Syria to Indonesia but not to get to Australia.”

The reasons of the Tribunal do not reveal a contradiction, nor a foundation to support the assertion that the applicant’s account was confused.  The applicant’s statement in support of the visa application, and the “Decision Record” of the delegate, contained consistent accounts, namely, that the PLO had said that it would make arrangements for the applicant with “smugglers” in Indonesia, but had not done so. 

45                  The Tribunal then went on to say that it:

“note[d] that [the applicant] was also confusing about his relationship with the PLO in Lebanon.  He told the Tribunal that the PLO might force him to work with them or they might turn him over to the Syrians.  In his November 2000 statement he appeared to be saying that the PLO were frightened that he would hand himself over to the Syrians and that was why they decided to help him leave the country.  He did not explain consistently why the PLO would have helped him to leave Lebanon - if they did do so.  The Tribunal is not satisfied that the applicant has been truthful on this issue of the PLO assisting him to leave either Lebanon or Syria.”

46                  There appears to be an absence of material on which it could be said that the applicant was untruthful on the issue of the PLO assisting him to leave Syria or Lebanon.  To the contrary, the material appears to be consistent and all one way.  In so far as the Tribunal invited the applicant to speculate what he thought “the PLO would do to him if he refused to cooperate with them”, the response by the applicant “that they could have killed him and they could have handed him over to the Syrians or made him be involved in a killing” provided scant foundation for any adverse conclusion on the applicant’s credit.  In so far as the Tribunal said it was not satisfied that the applicant was truthful on that issue, the Tribunal identified a matter that caused it to doubt the applicant’s claim.  It did not find affirmatively the circumstances had not occurred. 

47                  The Tribunal then turned to the letter received from the applicant’s brother.  The letter stated that:

“Political Branch and Mukhabarat are asking for you every now and then.  They had taken some of the family members’ statements…”

The Tribunal recited reasons why it was not satisfied at that point that the letter could be relied upon to make an affirmative conclusion on the occurrence of the events of which it spoke.  The doubts expressed by the Tribunal were not put to the applicant for comment.  The Tribunal could not, and therefore did not, say that the letter was not authentic or that the contents were concocted.  It remained material for the Tribunal to take into account in assessing whether it was possible that events had occurred as claimed, and whether there was a possibility that the applicant could suffer persecution as claimed if returned to Syria.

48                  With regard to the witness whose evidence the applicant asked the Tribunal to hear, the Tribunal said as follows:

“It is possible, though the Tribunal has severe doubts, that the applicant is wanted by the authorities in Syria as his witness claims.  However the Tribunal is not satisfied that if he is wanted that it relates to his political association with the PLO or any other Convention related reason.”

49                  There was no material before the Tribunal suggesting any cause for the applicant to be sought by Syrian authorities other than on the grounds provided by the applicant.  Obviously, the material provided by the witness had to be included in any assessment by the Tribunal of the possibility of the occurrence of past events and of the possibility that future events may include persecution of the applicant.

50                  Finally, the Tribunal concluded its reasoning as follows:

“The Tribunal is satisfied that the applicant has not been truthful.  The Tribunal finds that the applicant is a Syrian national.  It is not satisfied that he has or has had any association with the PLO or that he ever acted as a courier for the organisation.  The Tribunal is not satisfied that he has ever been detained by the authorities in Syria in the circumstances that he has claimed and is not satisfied that he was ever bashed and tortured as he claims.”

51                  First, the statement by the Tribunal that it was satisfied that the applicant had not been truthful, was a bare statement that did not define in what respect the applicant had been found to be untruthful.  The Tribunal had been unable to be satisfied as to the truth of some matters, as discussed above, but no foundation was established by the Tribunal for an affirmative finding that the applicant was untruthful in all respects.  Significantly, in the preceding paragraph of the reasons, the Tribunal had acknowledged that, notwithstanding any doubts the Tribunal may have held, it was possible that the applicant was wanted by authorities in Syria, as he claimed.

52                  The balance of the conclusion recorded by the Tribunal reflected statements made earlier in its reasons to the effect that the material had not persuaded it that events had occurred as claimed.  The Tribunal did not purport to find positively that such events had not occurred. 

53                  This was not a case where the Tribunal could state, and therefore did not state, that it had no real doubt that events had not occurred as claimed by the applicant.  Therefore, the requirements to be observed by the Tribunal at law may be taken to have been concisely expressed in the following remarks of Brooke LJ, with whom Robert Walker LJ concurred, in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469-470:

“For the reasons much more fully explained in the Australian cases, when considering whether there is [a real risk] of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.”

54                  As Gleeson CJ and McHugh J stated in Abebe at [83], the fact that an applicant:

“…might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that [the] claim for refugee status must fail.  As [Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559 at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution.  The Tribunal ‘must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution’ [Guo at 576].”

55                  In making its ultimate decision the Tribunal had to take into account the possibility that events of persecution had occurred in the past, as claimed by the applicant, and, after having regard to the degree of that possibility, subsequent events and circumstances then existing, the Tribunal had to assess the degree of chance, which may be a chance falling well below the balance of probabilities, that acts of persecution may occur in future if the applicant were returned to Syria. (See: Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 per North, Madgwick JJ at [25]-[26].)

56                  Of course, if by reason of patent inconsistencies, or dishonest statements, in an applicant’s account, the Tribunal forms a positive view that the applicant is not a credible witness in respect of claimed events, the Tribunal is not bound, as it otherwise would be, to take into account the possibility that those events had occurred as claimed, when considering whether there was a real chance that the persecutory events feared by the applicant may occur in the future.  (See:  Abebe per Gleeson CJ and McHugh J at [85]; Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 576).

57                  As noted above, this was not such a case.  The Tribunal did not find that the applicant was dishonest or untrustworthy and, indeed, accepted a substantial part of the applicant’s account.

58                  The reasons of the Tribunal show that it did not carry out the exercise required of it under s 414 of the Act in conducting a review and making a determination in this matter.  It follows that it has been shown that ground for review of the Tribunal’s decision arises under s 476(1)(e) of the Act, in that the Tribunal incorrectly interpreted the relevant law or applied the law incorrectly to the relevant facts (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 per McHugh, Gummow and Hayne JJ at [76]-[85]).

59                  The decision of the Tribunal must be set aside and the matter remitted to the Tribunal for redetermination.

Associate:

Dated:              11 April 2002