FEDERAL COURT OF AUSTRALIA

Tobasi v Minister for Immigration & Multicultural Affairs

[2002] FCA 1050

MIGRATION – application for protection visa – whether obligation under s 425(1) of the Migration Act as in force from 1 June 1999 following Migration Legislation Amendment Act (No.1) 1998 obliges Refugee Review Tribunal to provide an applicant with an opportunity to be heard.

MIGRATION – application for a protection visa – review of decisions of Refugee Review Tribunal – whether interpretation at Tribunal hearing was inadequate – whether inadequacies in interpretation affected Tribunal’s decision – whether inadequacies in interpretation constituted a failure to provide the applicant an opportunity to give evidence – whether Tribunal erred in failing to consider the applicant’s claims cumulatively – whether Tribunal erred in assessing the applicant’s claims on the basis that his past experiences might possibly be true – whether Tribunal based its findings on a particular fact that did not exist.

Migration Act 1958 (Cth), ss 36(2), 476(1), 476(1)(a), 476(1)(b), 476(1)(e), 425(1)

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Legislation Amendment Act (No.1) 1998 (Cth)

Migration Legislation Amendment Act 1989 (Cth)

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1; [2001] HCA 30 - discussed

Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 - discussed

W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788 - discussed

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 64 ALD 395 – referred to

Sreeram v Minister for Immigration & Multicultural Affairs [2001] FCA 53 - discussed

De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364 - cited

Minister for Immigration & Multicultural Affairs v Mohammad (2000) 101 FCR 434; [2000] FCA 1275 – referred to

Xiao v Minister for Immigration &  Multicultural Affairs [2000] FCA 1472 - discussed

Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362 - followed

Ismail v Minister for Immigration & Multicultural Affairs [1999] FCA 1555 – referred to

Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172 – referred to

Craig v State of South Australia (1994) 184 CLR 163 - cited

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 555 - cited

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] FCA 1 – discussed

Minister fro Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 – referred to

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

Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 – referred to

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

OSAMA MOHAMMED TOBASI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W.237 of 2001

MANSFIELD J

23 AUGUST 2002

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

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

REASONS FOR JUDGMENT

1                     This is an application to review a decision of the Refugee Review Tribunal (the Tribunal) given on 31 May 2001.

2                     The Tribunal affirmed a decision of a delegate of the respondent given on 1 December 2000 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 21 October 2000, shortly after his arrival in Australia.

3                     There is no dispute about the applicant’s background.  He is a stateless Palestinian who was born in Syria, and has residency rights in Syria.  He and his family registered as refugees with the United Nations Relief Works Agency in Syria, and have lived in Syria all their lives.  He left Syria in September 2000, arriving in Australia the following month.

4                     To be granted the visa, it was necessary that the delegate of the respondent, and on review the Tribunal, be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  As the Tribunal noted in its reasons for decision, in practical terms in the present matter the decision-maker had to be satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention, namely a person who:

“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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The criterion is that specified by s 36(2) of the Act.

the applicant’s claims

5                     The applicant claimed to have a well-founded fear of persecution for a number of reasons.

6                     He told the Tribunal that he had been conscripted into the Syrian Army in 1996, serving in the Palestinian Liberation Army Battalion under the control of the Syrian Army.  In March 1997, he had been arrested and detained for five months and was tortured during that period.  He claimed to have been accused of being a Palestinian Liberation Organisation (PLO) activist, in support of Yasser Arafat.  He told the Tribunal that his father had been a captain in the Fatah faction of the PLO, the pro-Arafat faction, and that the Syrians believed his father had undertaken sabotage of a bridge in Syria in the 1980s, although the applicant did not personally know of that.  He believed his father was a “security officer” in the PLO engaged in non-combatant duties.  He himself was a non-militant supporter of the PLO.  He told the Tribunal he was released after five months by the Syrian Army because they were satisfied that he was not an active PLO supporter.

7                     He was subsequently sent by the army to complete his military service in a dangerous area.  In January 1998 he was summonsed by military intelligence to answer questions.  He feared the outcome and fled to Lebanon where he remained until the end of 1998. 

8                     In about January 1999 he returned secretly to Syria, but was quickly identified and arrested by the Syrian authorities for desertion.  He was gaoled for nine months, and was treated badly whilst he was imprisoned.  He was then released, and sent back to his former army unit.  There he was instructed to go on a particular mission to Israel to engage in espionage activities in a particular area.  He and two other conscriptees were reluctant to do so.  On the third occasion when he expressed that reluctance, he was threatened with a further 12 month period of service in the army, to reflect the period that he had been detained when otherwise he would have been undertaking military service, without significant rights.  That occurred in March 2000.  He was too frightened to undertake the special duties which had been allocated to him, and so deserted and again fled to Lebanon.  He told the Tribunal during the hearing on 6 February 2001 that he had not been selected to undertake those special duties for any Convention related reason, but had been selected out of a large number of members of his unit because of his particular ability.  He was not selected as a punishment.  He then claimed that he had been sentenced to five years imprisonment in his absence for having deserted.

9                     The applicant said he fled to Lebanon, where in September 2000 he procured a false Palestinian refugee document and arrived in Australia via Indonesia.

10                  He claimed that he would be executed if he were returned to Syria because of his desertion and because he would be suspected of having given away confidential information or military secrets concerning the Syrian military/political situation.  He would otherwise simply have to serve his period of imprisonment for desertion.  His migration adviser claimed that he would receive a disproportionately severe punishment for deserting, due to his Palestinian ethnicity, his condition of statelessness, and his membership of a particular social group, namely membership of a family with PLO connections, and because of his political opinion or imputed political opinion of anti-Syrian sympathies.

11                  He also claimed through his migration adviser that he feared persecution upon return to Syria by reason of having applied for refugee status in Australia.  He referred to evidence of other Syrian Palestinian stateless persons who had been returned to Syria, on one occasion being detained for a week and on two occasions being required to attend the Syrian military authorities for questioning.

The Tribunal’s reasons

12                  After referring at some length to the applicant’s claims, the Tribunal considered independent country information concerning the circumstances of stateless Palestinians in Syria.  It then addressed that section of its reasons headed “Findings and Reasons”.  It recognised the difficulties of a person such as the applicant, because of language or cultural differences and his particular circumstances, in providing a lucid and plausible description of things which had happened to him in the past and why he feared persecution if he were to return to Syria.  Despite that consideration, it concluded:

“It is with an appreciation of all the considerations noted above that I have reached the conclusion that there are significant areas of implausibility in the applicant’s evidence.  In brief, I am not satisfied that his Palestinian background gave him the adverse profile he claims to possess in Syria, and whether or not he left Syria without completing his army service, I am not satisfied that he faces harm in a Convention sense over that action.

In general, I am not satisfied that the applicant has faced, or faces persecution for being a stateless, UNRWA-registered Palestinian resident in Syria because a range of independent evidence quoted above on pp. 9-13 shows that stateless, UNRWA-registered Palestinian refugees are well treated in Syria.”

13                  The independent country information to which the Tribunal referred clearly supported its conclusion that stateless Palestinian refugees in Syria, although not granted Syrian nationality, otherwise effectively have civil rights almost equal in all respects with Syrian nationals.  Such persons have rights of residence in Syria, and rights of exit from and re-entry to that country.  They have equal access to employment, education and health services.  They may join the Ba’ath Party and participate in its party elections.  They are not treated differently in respect of the length of, or nature of, compulsory military service.

14                  The Tribunal noted differences in the status of Palestinian residents as distinct from Syrian nationals in that they are not able to own more than one house or to own agricultural land, and they are not able to vote in national elections.  The reason why Palestinian residents in Syria are not entitled to nationality, it found, is not because of persecutory intent by the Syrian authorities, but because that country is following an Arab policy stance to shore up the nationhood rights of Palestinians.  It found that the restrictions on owning more than one house, or owning agricultural land, or not being able to participate in national elections by voting (while otherwise allowed to participate at a significant level of political activity), were not of such detriment as to amount to persecution within the meaning of that term in the Convention.

15                  Consequently, the Tribunal did not consider that the status of the applicant as a resident stateless Palestinian in Syria of itself could give rise to a well-founded fear of persecution.

16                  The Tribunal did not accept that the applicant had been detained and tortured for five months in 1997 during his national service because of any perceived PLO connection, or that afterwards he would have faced any persecution over any such perception.  It gave a number of reasons for that conclusion.  Independent evidence did not demonstrate that Palestinians in Syria would be viewed as being pro-Fatah, or that even the expression of pro-Fatah views would lead to mistreatment, unless there was active PLO militancy or PLO political activity.  The applicant did not claim to have engaged in such activity.  It placed weight upon the fact that, although initially the applicant presented himself as having a well-founded fear of persecution because of his family PLO links, later in the hearing he denied fearing persecution over a family PLO connection and based his claim upon the consequences of his desertion and other matters.  It observed that the applicant’s strong repudiation of facing persecution over a family link supported its conclusion that the applicant fabricated claims of being adversely regarded and mistreated over a suspect PLO link.  It found the applicant’s suspicion that Syrian authorities would have been focusing upon the applicant because of some activity or suspected activity of his father as a Palestinian commander blowing up a bridge in the 1980s to be not credible.  Such an incident, in relation to the history of violence at the time, was insignificant.  There was no reason why the Syrian security forces in 1997 should attribute to such an incident any significance.  The applicant was unable to describe with any detail any such incident, and his lack of ability to describe in any detail his father’s alleged pro-Fatah PLO activities, given what the applicant in evidence asserted about the effect upon the family’s residential arrangements and movements because of claimed suspicion of his father, was not credible.  In fact, the Tribunal took the view that if the applicant’s father did have the profile which the applicant claimed, the father would have been arrested by the authorities rather than leaving him loose in Syria.  There was no reason why the Syrians would select the applicant in 1997 as the person against whom any vindictive response to such conduct in the 1980s would be directed.

17                  It concluded, therefore, that:

“…it (is) implausible that the applicant would have been adversely regarded over a PLO link, and I am not satisfied that there is credibility in his claim of having been detained and tortured over such a link.”

18                  The Tribunal also rejected also the applicant’s claims that he had deserted in January 1998 for fear of being interrogated over a PLO link, because it was not satisfied that the Syrian authorities had or might pursue him for any such reason.  It was also not satisfied that he had deserted in March 2000 for the reason he claimed, or at all.  It found it improbable that the applicant, given that he had not even finished national service, had only engaged in training duties, and had no particular rank, would have been selected for highly secret and sensitive espionage activities.  It was therefore not satisfied about the applicant’s claims that he had deserted from the Syrian Army.  Although the applicant claimed to have seen a paper stating that he faced five years gaol for having deserted, the Tribunal was not satisfied that such a paper existed.  It also found that, even if the applicant had deserted, he would not face persecution for a Convention reason by reason of such action.  Any penalty imposed upon him for desertion would be that applicable under laws of general applicability governing desertion from the Syrian Army.  It noted that there was no independent evidence that as a Palestinian he would be subject to differential treatment for desertion, and was not satisfied that his evidence credibly demonstrated the existence of factors that would bring him within the ambit of the Convention for being punished over an act of desertion.

19                  The Tribunal concluded:

“On the basis of all the evidence discussed above, I am not satisfied that the applicant left Syria in circumstances where he feared serious harm.  I am of the view that he came to Australia for reasons unconnected with the Convention.  I am therefore not satisfied that he left Syria illegally.  Independent evidence shows that it is not difficult for Palestinian residents in Syria to obtain travel documents and to leave the country, and given that I am not satisfied that there are particular reasons why the applicant’s journey out of Syria would have been officially hindered, I consider that he left Syria normally and legally, whether or not he travelled through Lebanon on his way here (I note that according to independent evidence on p.11 the applicant could have used his ID card to enter Lebanon).  He claims to have disposed of his passport.  Even so, independent evidence shows that he could return to Syria once his identity and UNRWA registration is confirmed by the Syrian authorities (DFAT Country Information Report 453/00 of 13/8/2000, CX43812):  I see no reason why this would be difficult to do through UNRWA and Syrian records and the existence of the applicant’s family in Syria.  I note DFAT’s comment that broad agreement has been reached with the Syrian Interior Ministry over arrangements for returning Syrians and Syrian Palestinians who enter Australia illegally (DFAT Country Information Report 100/01 of 19/3/01, CS51305).  For the record, I will note that even if the applicant had left Syria illegally – and I am not satisfied that he had done so – he would not face persecution but, according to DFAT be punished under a law of general application governing illegal exit (“Palestinians, or anybody for that matter, who departed Syria illegally would be likely to be penalised on return to Syria” – CX 43812).”

20                  The Tribunal was not satisfied that the applicant would be accused by the Syrian authorities, upon return to Syria, of having passed military or State secrets to Australia.  It regarded the claim as not credible.  There was no reason why someone at his level in the army would have access to any significant military or political secrets.  The applicant could not explain satisfactorily why that would be the case.  It did not accept that, with his experience, he would have been posted to any area of high military secrecy, nor with his experience would he have been able to learn of any sensitive military secrets.  It considered that, upon his return to Syria, the applicant if he had deserted would be evaluated in the circumstances of his case simply as a deserter to avoid army service.  It did not accept that the Syrian authorities would impute secret knowledge to the applicant simply because he came to Australia, or for any other reason.

21                  The Tribunal also referred to the applicant’s claim that he feared persecution upon return to Syria by reason of being a failed Palestinian asylum seeker.  Independent information was that, routinely, returned refugee applicants from Australia may be detained on return and questioned by Syrian intelligence officers and released once the authorities are satisfied that the returnee is not wanted for criminal activity.  That was a legitimate law and order and security measure, and did not involve any focus upon the applicant by reason of a Convention reason.  Particular illustrations which the applicant reported to the Tribunal were consistent with that conclusion.  It regarded the applicant, in relation to his return, as a person having no significant profile and not one who would attract attention upon his return to Syria.  There was no reason to think that the applicant himself would go out of his way to attract opprobrium, so he would simply be treated as someone who broke immigration laws of another country, i.e. Australia.

22                  The Tribunal was therefore not satisfied that the applicant has a well-founded fear of persecution for a Convention reason upon his return to Syria.  He was not a person, in the Tribunal’s view, to whom Australia has protection obligations under the Convention.  It followed that, in accordance with s 65(1) of the Act, the Tribunal properly affirmed the decision not to grant him a protection visa.

the evidence on review

23                  At the hearing, senior counsel for the applicant tendered three affidavits which were received without opposition.  The affidavits were from the applicant sworn on 12 January 2002, from the applicant’s solicitor sworn on 25 January 2002, and from Mohammad Bakir Hamoud, an interpreter also sworn on 25 January 2002.  The latter two affidavits asserted the accuracy of a transcription of the recording of the Tribunal’s hearing on 6 February 2001.  The respondent was given the opportunity to challenge the accuracy of that transcription, but has not done so.  In addition, Mr Hamoud, who is a qualified interpreter, has interposed into the transcription in an identifiable way sections of the transcription by his interpretation what the applicant said to the interpreter at the hearing, or what the interpreter said to the applicant at the hearing where he considers the transcription at the hearing does not accurately or completely record what was said between the interpreter and the applicant at the hearing.

24                  There is therefore a composite document constituting what may be taken as an accurate transcription of what was said at the hearing in English.  That document also identifies where Mr Hamoud considers that the exchange between the applicant and the interpreter in Arabic is not accurately reflected in the transcription, either translating the applicant’s response or the Tribunal’s question and Mr Hamoud’s view as to what was in fact said.  In his affidavit he asserts that although part of the translation at the hearing was competent, overall it was not a competent translation.

25                  The applicant’s affidavit appears to raise two concerns.  One relates to the quality of the interpretation at the hearing.  He complains that, during the hearing, the interpreter on numerous occasions asked him the same question, using different wording, even after he had provided the interpreter with a detailed answer.  He said he became frustrated with the same questions being asked, although he tried to remain patient in giving his response in repeating what he had previously said.  He says:

“I believe the interpreter understood the question asked by the ‘judge’ but was unable to translate the question in a precise manner for me to respond.  I also believe the interpreter was unable to grasp or interpret precisely what my answer was to the question that was being asked of me.”

I do not think that complaint can be given any weight.  The applicant does not speak English, even slightly.  He is not qualified to comment on the quality of the interpretation of what he said in Arabic into English.  Moreover, the extent to which the interpretation at the hearing might be said to be unreliable is disclosed in the composite document referred to (assuming of course the accuracy of Mr Hamoud’s interpretation).

26                  The respondent adduced evidence, also without opposition, which indicated that the interpreter at the Tribunal’s hearing had a Degree of Bachelor of Arts in Interpretation and Translation from the University of Western Sydney granted on 8 April 1998, and on 26 June 1998 was accredited as an interpreter in the English and Arabic languages.

27                  The other concern of the applicant expressed in his affidavit relates to the course of the hearing.  At material times, he was represented by a migration agent who was a solicitor.  He says he did not meet the solicitor who appeared for him at the hearing, nor have any contact with that solicitor, prior to the hearing.  He says he was not notified of the hearing date.  In February 2001, he was in custody because he had escaped from the Port Hedland Immigration Reception and Processing Centre (Port Hedland), and had then been arrested.  On 6 February 2001, he was taken to a courtroom for the hearing which took place by video link-up to the Tribunal.  He attended, accompanied by two police officers, and was handcuffed.  He says he was unprepared for the hearing and was uncomfortable during it.  He was not aware, because the video showed the Tribunal member and the interpreter, until the end of the hearing that his migration agent was present.  He only became aware of that when the Tribunal asked the migration agent if there were matters which the migration agent wished to add.  He also complains that he did not see the written submissions subsequently presented on his behalf by the migration agent to the Tribunal, and that he did not give detailed instructions with respect to them.

28                  The application for review of the delegate’s decision to the Tribunal dated 2 December 2000 is signed by the applicant, although apparently completed in another hand.  It records that the applicant was assisted by the migration agent.  His address is given as Port Hedland, and his address for service as the agent’s address.  The document notes that all documents will be sent to the applicant at the address for service unless otherwise advised.  In fact, on 20 December 2001 the Tribunal notified the applicant of the hearing, then proposed on 1 February 2001, by notice sent to him at Port Hedland.  The hearing date was subsequently changed, and a notice of the change was given on 1 February 2001, again sent to the applicant at Port Hedland, as well as to Greenough Prison where he was apparently then detained.  Each of those notices of hearing was accompanied by the notice required by s 425 of the Act inviting the applicant to respond to the hearing, to indicate whether he wished any person to be called by the Tribunal to give evidence, and to indicate whether he required an interpreter.  His responses dated respectively 28 January 2001 and 5 February 2001, although apparently completed in a hand other than that of the applicant, each bear a signature which looks like that of the applicant.  There is no evidence to show that those signatures are not his signatures.

29                  On 16 February 2001, the applicant’s migration agent sent a lengthy submission to the Tribunal on his behalf.  It is a carefully considered submission, dealing at length with the relevant legal principles, independent country information and the practical application of the principles to the applicant’s claimed circumstances.  In no respects does it appear to be inconsistent with the applicant’s case as he presented it to the Tribunal, and no complaint was made on his behalf that it was inconsistent with his claims or incomplete.

30                  On 5 April 2001 the Tribunal wrote to the applicant’s migration agent at the applicant’s address for service as given in his application, inviting comment on certain independent country information about the return of Syrian Palestinians to Syria which the Tribunal considered may have been significant.  Although it was not about the applicant personally, so that s 424A may not have been engaged, it was appropriate for the Tribunal to refer it for comment.  On 12 April 2001 the applicant’s migration agent duly responded.  Again no assertion or submission was made that the response on his behalf was not consistent with his instructions, or was incomplete, or that he wished to have responded in some different way.

the grounds of review

31                  As the application to the Court was instituted before the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) on 2 October 2001, the Act as in force prior to that date applies to the Court’s consideration of the application.  The grounds of review available to the applicant are those specified in s 476(1) of the Act as in force prior to that date.

32                  The applicant’s contentions sought to invoke two of those provisions, namely s 476(1)(a) and s 476(1)(e) of the Act.

33                  The Tribunal was said to have failed to observe procedures required by the Act to be observed in connection with the making of the decision, so as to enliven s 476(1)(a) in the following respects:

“1.       The Tribunal failed to provide or ensure the provision of a competent Arabic-English interpreter and therefore procedures that were required by this Act to be observed in connection with the making of the decision were not observed.

2.                  Some of the significant questions by the Tribunal were too complex in concept or too long for a non English speaking person relying on a interpreter.”

34                  The Tribunal was said to have erred in law, either by incorrectly interpreting the applicable law or by applying the law to the facts as found by the Tribunal, in the following respects:

“3.       The Tribunal considered and dealt with the applicant’s claims separately.  His claims are not independent claims but are all facts which together lead to the reason for his objectively well based fear of persecution.  The Tribunal erred in not considering the facts cumulatively.

4.                 The Tribunal correctly states the principles concerning assessing the applicant’s credibility due to the difficulties faced by refugee applicants but it does not in fact apply these principles.

5.                 The Tribunal rejects some of his evidence and makes opposite positive findings which have no basis.  It uses those findings in making its decision.

6.                 The Tribunal improperly and unfairly restricted the applicant to one week from the hearing date of 6 February 2001 to produce a document.

7.                 The Tribunal failed to consider material facts, namely if the applicant was at any risk of execution.

8.                 The Tribunal misled the applicant that earlier apparent inconsistencies in written statements before the hearing were accepted as errors of translation but made findings on these issues against the applicant’s credibility.

9.                 The Tribunal found facts without any evidence, and contrary to the Applicant’s evidence.

10.             It then relied on the above erroneous findings of fact in making its decision where there was no evidence or other material to justify the making of the decision.

11.             The Tribunal failed to consider all the substantive matters which bear on whether the Applicant meets the criteria for a protection visa and so failed to consider the real question.”

To an extent, those matters also were said to enliven s 476(1)(b) and s 476(1)(c) of the Act as there is some overlap between those grounds of review:  see the discussion of McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at  [84] – [85].  The penultimate matter referred to above was also said to enliven the ground of review available under s 476(1)(g) as limited by s 476(4)(b) of the Act. 

consideration of grounds of review

35                  Section 425(1) of the Act provides:

“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

That provision was amended, effective from 1 June 1999, by the Migration Legislation Amendment Act (No.1) 1998 (Cth).  It previously provided that the Tribunal:

“… must give the applicant an opportunity to appear before it to give evidence.”

In Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, Kenny J accepted that a departure from the appropriate standard of interpretation could amount to a failure to afford a visa applicant an opportunity to give evidence as then required by s 425 of the Act.  Senior counsel for the applicant contended that the reformulated expression of s 425(1) had not altered the substance of the Tribunal’s obligation.

36                  In W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788, French J concluded, in a matter concerning the current expression of s 425(1), that inadequate interpretation at a hearing before the Tribunal may constitute a failure on the part of the Tribunal to comply with the requirements of s 476(1)(a).  There were accepted errors in the interpretation at the hearing which might have led the Tribunal to view the reliability of the applicant’s evidence differently.  The respondent argued in that case that the Tribunal’s obligation under s 425(1) was satisfied once the invitation to appear in appropriate terms was given.  It should of course be a genuine invitation, and not “a hollow shell or an empty gesture” (see per Goldberg J in Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 64 ALD 395).  I think it is implicit in his Honour’s decision that he rejected that contention.  His Honour quoted with approval the observation of Goldberg J in Mazhar after reviewing authorities about the effect of the 1999 amendment to s 425 in the following terms:

“The invitation must not be a hollow shell or an empty gesture.  If an invitation to appear is extended to an applicant, where the Tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the Tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the Tribunal.  If that situation arises the Tribunal will not have fulfilled its obligation under s 425(1).”

37                  Beaumont J in Sreeram v Minister for Immigration & Multicultural Affairs  [2001] FCA 53 reviewed the authorities to that time dealing with the respondent’s present contention, at [14] to [27] and agreed with the views of Goldberg J in Mazhar.  Counsel for the respondent contended in this matter also that s 425 has no ongoing operation once an invitation to appear at the hearing has been given, unless for some reason the invitation has been withdrawn.  Hence, it was contended, in this matter the Tribunal satisfied the procedural obligation imposed by s 425(1) by the invitation given to the applicant at his address for service (and to Port Hedland, and to the Greenough Prison) on 1 February 2001.  Any inadequacy in interpretation at the hearing could not, therefore, amount to a failure to comply with s 425(1), at least where the Tribunal is not shown to have failed to genuinely attempt to secure a competent interpreter at the hearing.

38                  The respondent contended that:

·          deficiencies in the standard of interpretation no longer found review under the Act, following the amendment of s 425 of the Act, and as a result the decision in Perera should no longer be followed,

·          to the extent that deficiencies in the standard of interpretation can lead to review, the test is more difficult as a result of the amendment to s 425 and the applicant must establish that as a result of interpretation difficulties his invitation to appear at a hearing was no more than an empty gesture or a hollow shell,

·          alternatively, even if Perera still states the law so that the Tribunal must afford an applicant with an effective opportunity to appear, the test was met in this case because it is clear from the Tribunal’s reasons that the substance of the applicant’s complaints were all communicated to the Tribunal and the Tribunal understood them, and because in essence the Tribunal’s adverse findings in relation to his credibility did not relate so much to observations of demeanour or internal inconsistencies which might be influenced by inadequate interpretation but because the Tribunal found the substance of the applicant’s account was not credible.

39                  I do not consider that the Full Court decision of De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364 referred to by the respondent directly supports his contention.  It concerned whether the obligation under s 425(1), obliged the Tribunal to identify issues and draw them to the visa applicant’s attention for his response.  The Court (Hill, Carr and Sundberg JJ) rejected that contention.  At 367, their Honours said:

“The governing word in s 425(1) is “invite”.  The purpose of the invitation is to enable an applicant to attend the hearing so that he or she can give evidence and present arguments relating to the issues in the case.  On the plain words of the subsection the obligation is to invite the applicant to appear.  It does not impose on the Tribunal an obligation to identify issues and draw them to an applicant’s attention.”

In my view the Court’s views address the present issue.  Its language about the purpose underlying s 425(1) suggests the provision contemplates attendance at the hearing to give evidence and present arguments in a meaningful way.  However, I agree that the obiter remarks of Branson J in Minister for Immigration & Multicultural Affairs v Mohammad (2000) 101 FCR 434 at 449-450; [2000] FCA 1275 at [43] provide some support for the respondent’s contention.  The other members of the Full Court in that case, Burchett and Marshall JJ, made no observations on the point.  Wilcox J in Xiao v Minister for Immigration &  Multicultural Affairs [2000] FCA 1472 at [35-37] expressed agreement with the views of Branson J in Mohammad, in a case where the Tribunal had invited the visa applicant to appear and she had not done so.  His Honour concluded that the Tribunal was entitled then to proceed to determine the application under s 426A(1), even though the applicant had conveyed to the Tribunal that she would not be able to appear at the hearing and requested a later hearing date.

40                  In my view, the observations of the Full Court (Black CJ, Hill and Weinberg JJ) in Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362, albeit in a different factual context than the present matter, also support the view taken in the cases referred to in [35-36] above.  The respondent put the same submission as in the present case:  see at [28].  Their Honours reviewed the statutory context of s 425, and its legislative history.  They said at [44] that the “right to a hearing is clearly an important and central right in the merits review system established by Part 7 of the Act”, and at [45] that they did not agree with the respondent’s submission.  I note that their Honour’s view was not strictly necessary to dispose of the appeal, and so is not part of the ratio of the case.

41                  In my view, I should follow the considered, albeit obiter, opinion of the Full Court in Liu.  It reflects the most recent considered view of a Full Court of the Court, and the views expressed by several judges of the Court at first instance.

42                  The overall lack of competence of the interpreter at the hearing on 6 February 2001, and so the failure of the Tribunal to give the applicant a “fair and proper hearing”, is said to be demonstrated by the comparative transcript.  Senior counsel for the applicant contended that, as the applicant did not understand many of the significant questions asked of him due to interpreting inadequacies he could not give an appropriate response, and that many of his responses were inaccurately conveyed so as to have led, or possibly to have led, to the Tribunal’s adverse assessment of the applicant’s creditworthiness.  In addition, it was contended that the Tribunal asked a number of long complex questions to which the applicant either did not have the opportunity of fully responding or, by reason of their length and complexity, he could not respond.

43                  The respondent has not sought to challenge the reliability of the comparative transcript, but contends that the differences which it exposes do not indicate that the Tribunal was unable to appreciate the essence of the applicant’s claims and do not provide a foundation for thinking that the assessment of the applicant’s credibility might have been different with a more competent interpreter (assuming Mr Hamoud’s interpretation is the correct one).  In fairness to the interpreter at the hearing, I indicate that I also proceed on the basis that the comparative transcript, including Mr Hamoud’s interpretations, provides an accurate interpretation of what was said at the hearing, without making a positive finding that the interpreter at the hearing was inaccurate in the manner referred to by Mr Hamoud.  For the purposes of this case, the respondent was prepared to proceed on that assumption.

44                  The hearing took some three and a half hours.  The comparative transcript occupies 48 pages.

45                  The hearing commenced with the applicant affirming to give truthful evidence.  There was an extensive exchange about whether he wished to take an oath on the Koran, or by a non-religious affirmation.  The applicant asked the Tribunal to address his particular circumstances.  The Tribunal ensured he could see and hear adequately, and advised him to indicate if he had any trouble understanding the interpreter.  The Tribunal explained its role and the nature of a refugee under the Convention.  The applicant, at that point, asked the Tribunal to arrange to have his handcuffs removed and there was an exchange on that topic.  To that point, the consolidated transcript does not suggest any difficulties in communication between the applicant and the Tribunal through the interpreter.

46                  The Tribunal then turned to the applicant’s claims.  It asked about the applicant’s movements from Syria to Australia, and the lapse of time between deserting the army and leaving Syria.  Although the composite transcript suggests slightly differently expressed answers to the Tribunal, the substance and meaning of the answers as given by the interpreter and as interpreted by Mr Hamoud is the same.

47                  There are later in the composite transcript a number of recorded answers where the interpreter’s version differs from that of Mr Hamoud, but only in matters of form or expression and not in any substantive way.  I shall not refer to such differences hereafter.

48                  The Tribunal then asked about the reasons for the applicant’s arrest by Syrian intelligence in March 1997.  The applicant explained his father’s PLO role and its consequences.  Mr Hamoud’s version of the applicant’s response includes the assertion that his father had “spent a long time in prison” in Syria before escaping to Lebanon.  Otherwise, in my view, the interpretations are consistent in substance.  The picture of the applicant’s father being on the run, the family being harassed, the applicant’s father fleeing Syria for Lebanon where he remained until he died, and his brothers also leaving Lebanon so that the applicant was the one male family member left for Syrian intelligence to interrogate and arrest for suspected PLO links was conveyed at the hearing.

49                  The interpreter reported the applicant also as saying all his family are known as part of the PLO as being his problem, whereas Mr Hamoud’s version is “Our family is known to be in the” PLO.  I do not accept that one version indicates the applicant is suspected of being part of the PLO and the other that the applicant was not himself suspected of being part of the PLO.  In my view, the difference in the versions of those answers is not of moment.

50                  Although the interpreter’s versions of the answers are somewhat less precise than the Hamoud versions, there is no indication that the Tribunal did not receive the real sense of the applicant’s responses.  Its follow-up questions indicate that it did.  The fact that the answers are a little less coherent and precise on this topic is not in the circumstances significant.  There must also be allowance made for the interpreter interpreting “live” compared to the opportunity Mr Hamoud enjoyed of listening carefully to the recording of the interview and thinking carefully about the way in which the applicant’s answers should best be expressed in English.  For example, whether the applicant’s father was “eminent” or a “captain” in the PLO, his administrative duties were correctly understood by the Tribunal, and it is the nature of those duties which led the Tribunal to doubt the applicant’s claims about his status and actions so as to attribute to the Syrian authorities a desire to investigate him.  The difference between “eminent” or “senior officer” was not of itself a factor in the Tribunal’s assessment on this topic.

51                  The applicant claimed, in response to the Tribunal, that any person working for the PLO or Arafat in Syria at even menial levels would be targeted by Syrian authorities.  The Tribunal referred to independent country information inconsistent with that claim, so that only higher profile pro-Arafat activists receive the attention of the authorities.  The applicant seems to have agreed, and said that was why his father spent so much time in Lebanon.  He said his father was in the targeted group because he was suspected of being involved in blowing up a bridge in Sidon in the 1980s.  He speculated that the authorities formed their belief from information provided by people who had been arrested and interrogated following the incident.  He did not himself know whether his father played a part.  He had not asked his father.  His brothers did not think his father had played a part.  The only brother who would know was accused with his father, and now lives in Germany.

52                  He claimed the reason his three brothers and himself have dispersed from Syria is through fear because of this issue.  The interpreter said:

“… You know, it’s not like, a big issue, it is a big issue, that is why my family is like all over the place … it is all because of this issue.  It is all because our life is in danger.”

Mr Hamoud’s version is:

“… If this issue was not big for the Syrians … (unclear).  That’s why our family is displaced … because of Syrian government and intelligence.”

The complaint is made that, as interpreted, the version appears vague and vacillating.  It was not understood in that way by the Tribunal.  I think the message the applicant sought to convey is clearly enough communicated.

53                  The Tribunal pressed the applicant about why, if the family was in danger from his father’s suspected actions, the family remained in Syria for so long.  The applicant contends that the series of responses, as interpreted, is meandering and unclear and may have affected the assessment of the applicant’s credit.  The interpreter clearly conveyed the applicant’s responses that the family could not leave Syria because he had unmarried sisters, and it was too difficult and too risky for his mother and sisters to escape to Lebanon, and his mother and sisters were not in danger like the applicant and his brothers.  One answer records that “… my father goes home to himself only because he’s the one who is responsible for his actions”, whereas Mr Hamoud records that “… my father did wrong to himself”.  In the context of the topic being explored, and the applicant’s other answers, any misinterpretation would not have had the effect claimed.  The Tribunal clearly understood the nature of the applicant’s responses on the topic.

54                  The next sequence of questioning concerned why the applicant in 1997 was called in and questioned by the Syrian authorities.  The applicant’s answers were apparently conveyed reliably by the interpreter.

55                  The questioning then turned to the applicant’s return to Syria at the end of 1998, and his claim then to have been imprisoned for nine months for desertion.  The interpreter’s version of the applicant’s explanation of why he was then imprisoned is somewhat broken, but the answer conveys the same response as that interpreted by Mr Hamoud.  The applicant through counsel contends that the somewhat broken answer might enable the Tribunal to infer evasiveness or lying, and might obscure the clarity of the answer.  Reference is made to those passages in the Tribunal’s reasons which refer to vagueness in the applicant’s answers.  Those references do not relate to this topic, but to specific matters where the Tribunal regarded the applicant’s vagueness as hard to reconcile with what it thought he should have known if his evidence was reliable.  In my view, the stilted or broken nature of the applicant’s answer on this topic is not shown to have played a part in the Tribunal’s assessment of certain responses being vague.  Indeed, where the Tribunal has commented upon vagueness in the applicant’s answers, the evidence he gave on those topics (whichever version of the hearing is adopted) does lack the precision which the Tribunal expected.

56                  One particular exchange on the topic was as follows:

“Officer:         From the information you are giving me it seems that what the Syrians were interested in really in questioning you was the information about your brothers and your father.  They were not really interested in you.  They wanted information from you about your brothers and your father.  Is that a correct summary of the situation?

Tobasi:            Yes, that’s exactly right, they believed they can – information from me about them.  Especially they believed that if I’m part, that if I’m a member of the PLO that I might be having information that I had about them or something like that.  I used to keep telling them all the time that my father has died and I have no information about them as to what they were involved in doing.

* Tobasi to interpreter in Arabic:  Yes, and in particular if I were in the movement I would have known their whereabouts.  There would be contacts with them through the movement.  I could say that my father is dead and claim that I don’t have any contacts with my brothers.”

The applicant contends that the interpreter’s version wrongly indicates that the applicant accepts that he was not himself suspected of being a member of the PLO.  I do not consider that the applicant’s answer as then given did exclude such a possibility.  It includes the passage:  “Especially they believed that if I’m … a member of the PLO …”.  The Tribunal’s next question about whether the Syrian authorities thought the applicant could himself be a PLO activist indicates the Tribunal understood the applicant’s earlier answer had not excluded the possibility.  The applicant’s answer then also conveys the claim the authorities believed he may have been in the PLO.  I note Mr Hamoud’s version of the answer commences with the words “I was little then …”, not conveyed by the interpreter’s version.  If the Tribunal accepted the incident of blowing up a bridge occurred in the 1980s, inevitably it would have realised the applicant’s age at the time.  Its focus was upon whether the applicant was thought by the Syrian authorities in 1997 or thereafter as having PLO connections.  The omission of those introductory words, assuming they were said, does not tend to indicate the Tribunal did not understand the applicant’s response.

57                  The hearing turned then to the applicant’s claim to have been assigned a dangerous mission in Israeli territory once he had returned to military service.  The Tribunal said his evidence that he had not directly refused to obey an order, but had procrastinated in the hope the duties would be re-assigned, was improbable.  Its view was not based on an unclear interpretation, although the words used by the interpreter are somewhat more discursive than those attributed to the applicant by Mr Hamoud, as its following question indicates it understood the substance of the applicant’s answer.  The applicant did claim to have deserted because he did not want to undertake that mission, or to face the consequences of the Syrian army for not doing so.  The Tribunal’s non-acceptance of that claim, as noted above, was because it was inherently unlikely.  It did not reject the claim in circumstances where it misunderstood the applicant’s evidence.  Despite some different wording in the two interpretations, the Tribunal clearly understood the evidence and did not accept it for reasons unrelated to any differences in the wording of the two versions of the answers.   The Tribunal’s questions also indicate that it understood the applicant’s claim to have been sentenced to five years imprisonment for desertion, in his absence, and that he had a document confirming that sentence.

58                  Next, the Tribunal asked the applicant why he feared returning to Syria.  One point made by the applicant, and said to have been translated inadequately, is his fear that the circumstances of his second desertion from the Syrian army, in conjunction with his escape to a western country with military and political information, would lead to him being regarded as guilty of treason.  However, the Tribunal’s reasons indicate it clearly understood the claim, and in the following answers the interpreter’s version includes reference to the applicant’s fear of being regarded as a traitor.  The series of questions and answers includes the applicant describing his army rank as “just a soldier”, whereas Mr Hamoud says the answer was: “… a recruit, but I was first in my batch …” although his duties were only basic training.  I do not think that difference is one which could have impacted upon the Tribunal’s decision, having regard to its reasons for not accepting this aspect of his claims.  Moreover, shortly thereafter, the applicant said he was selected because of his excellence in training, and had been selected for special training and was asked about it.  The Tribunal clearly understood the picture which the applicant sought to convey.

59                  The applicant’s migration agent was then permitted to question the applicant.   The topics included whether the applicant feared greater punishment for desertion due to any perceived family PLO connections.  He said he was not selected to undertake the special mission for any Convention reason.  The migration agent also asked the applicant about leaving Syria, and about whether he feared persecution because he is perceived as anti-Syrian.  The applicant explained his “biggest” or “basic” problem is the bringing of secret information to a western country following his desertion from the Syrian army.

60                  Senior counsel for the applicant also submitted that the Tribunal asked a number of unduly long or complex questions, which contributed to the Tribunal’s alleged failure to afford the applicant with an opportunity to give evidence.  I have considered the transcript carefully, including the examples given in the submission.  I do not accept that, in any real sense, the Tribunal’s method of questioning or style of questioning the applicant in fact impeded his ability to give evidence at the hearing.  The Tribunal overall appears to have been careful to ensure the applicant understood its questions, and on the few occasions when his responses were not quite appropriate it repeated the question or pursued the topic in a different way.  Explanation of how the Convention operates is, in some respects, complex or difficult.   The applicant had the benefit of having advice from his migration agent, and was assisted by the migration agent at the Tribunal.  The migration agent was permitted also to question the applicant, and could then have explored any perceived misunderstandings arising from the Tribunal’s questioning.

61                  My consideration of the respective interpretations of the interpreter at the hearing, and of Mr Hamoud, has not lead me to the view that the applicant was not invited to give evidence at the hearing, or that his opportunity to give evidence was to any real measure frustrated.  It is inevitable that interpreters may use different words to convey the same meaning from time to time.  The fluency of interpretation, with the advantage of more time to translate, may sometimes present a more cogent expression of the response than that given during a hearing.  But in this matter I am far from persuaded that, in substance, the applicant was “prevented from giving his evidence” (per Kenny J in Perera at [38]) because of any incompetence on the part of the interpreter.  I do not think that the Tribunal made findings adverse to the applicant by reason of any erroneous interpretation of the applicant’s evidence (cp Ismail v Minister for Immigration & Multicultural Affairs [1999] FCA 1555).  Nor am I persuaded that its adverse view of the applicant’s reliability was contributed to by any inadequacies in the interpretation of the applicant’s evidence at the hearing (cp Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172).

62                  Accordingly, in my judgment, grounds one and two of the grounds of review are not made out.

63                  As senior counsel addressed grounds three to four of the grounds of review together, it is convenient also to deal with them in that way.  In substance, these grounds assert error of law and jurisdictional error as explained in Craig v State of South Australia (1994) 184 CLR 163 per Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 in the following passage:

“… If such administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistake in conclusion, and the tribunal’s exercise or purported exercise of power is thereby effected, it exceeds its authorities or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

That passage was quoted with approval by McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1; [2001] HCA 30. Their Honours at [84] – [85] explained the overlap between the grounds of review available under s 476(1), (b), (c) and (e) of the Act in that context.

64                  For the purpose of determining whether the applicant has a well-founded fear of persecution for a Convention reason, it is appropriate for the Tribunal to make findings about what has occurred in the past.  Such findings, as Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 555 at 575, are

“… likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”

Consequently, in my view, the Tribunal was correct in addressing the several claims of the applicant about what had happened to him in the past.

65                  It’s conclusion that it was not satisfied that the applicant faces a risk of persecution because of some perceived PLO sympathy or connection was reached because it was not satisfied that the applicant was detained in 1997 for five months and tortured due to some perceived PLO connection.  It cannot be criticised for having addressed the claim of the applicant that he had been detained in 1997 for that reason.  It reached the conclusion that his claim was “implausible”.  It also addressed, and was not satisfied about, the claim of the applicant to have deserted the army in early 1998, or again in early 2000.  It thought his claim of being asked to undertake a secret and dangerous mission was “most improbable”.  Having reached those views, it found the applicant came to Australia for reasons unconnected with the Convention.

66                  In the light of those findings, the Tribunal in my judgment is not shown to have erred by failing to consider cumulatively the applicant’s claims in the way contended for.  Without making findings about his claimed detention and torture in 1997, his desertions from the army, and his exposure to military secrets, it could not rationally address the question posited by Art 1A(2) of the Convention.  It is, of course, appropriate for the Tribunal to address that question having regard to all the applicant’s past experiences but it was appropriate for the Tribunal first to address whether it was satisfied that the past experiences as claimed had in fact occurred.  See also the remarks of McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 1 at 419; [2000] HCA at [49].

67                  The Tribunal found the applicant came to Australia for reasons unrelated to the Convention and so left Syria normally and legally.  It then considered whether, having disposed of his passport, or having come to Australia after deserting (as he claimed) he might be suspected of giving away military secrets, or having applied for a protection visa in Australia so he might be identified as being anti-Syrian, he might hold a well-founded fear of persecution for a Convention reason. It was not satisfied on any of those accounts that he does.

68                  I do not consider its approach involves asking itself a wrong question.  In my view, it asked itself the right question. It has not been shown to have erred in law as ground three of the grounds of review contends.  Its approach considered the applicant’s circumstances as a stateless Palestinian resident in Syria both of itself, and in conjunction with his claim to have PLO connections or perceived PLO connections.  But, in the result, it rejected his claims of past mistreatment based on his claimed PLO connections, so that (subject to the matters raised by grounds five and 11) that factor did not require further consideration.

69                  Grounds five and 11 appear to have two aspects.  The first involves a detailed critique of the Tribunal’s fact finding processes.  The second involves an alleged failure of the Tribunal to assess the applicant’s claims on the basis that his past experiences could possibly be true.  The contention in substance is that:

“The Tribunal’s decision is expressed largely by conclusionary statements, without it being clear why those conclusions were reached.  It did not explain what, if any, material led to that conclusion.  It has expressed itself as not being satisfied about a range of claims of the applicant in his particular circumstances, rather than addressing whether his fear that it does not do so is well founded.  The Tribunal has asked itself the wrong question in the sense explained in Yusuf in addressing the aspect of the applicant’s claim.”

70                  In this matter, the Tribunal did not accept as credible the applicant’s claims about his arrest in 1997 or his two desertions from the army.  It positively found that he left Syria legally, and that he did so for reasons unrelated to any Convention reason.  It explained why it reached that view in terms which indicate, to paraphrase the majority judgment in Guo at 576, it appears to have had no real doubt that its findings as to the past were correct.  Its apparent confidence in those conclusions means that it was not bound to consider whether its findings might be wrong:  see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 [67] per Sackville J.

71                   The detailed critique of the Tribunal’s findings must be approached in the context that the Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning:  per Kenny J in Rajalingam at 257 [146] and the cases cited by her Honour.  The applicant contends that the Tribunal’s approach to its findings does fall on the side of the line involving an error of law by pointing to a series of steps in the Tribunal’s approach which are said to be demonstrably wrong.

72                  The Tribunal is said to have pointed erroneously to an inconsistency in the reasons given by the applicant for being selected for the special military mission into Israel, by attributing to the applicant claims that he had been selected as a punishment and on special merit.  I do not think it did so.  The passage in its reasons to which the submission refers is a recital of the evidence given by the applicant, towards the end of the hearing, when being questioned by his migration agent.  It emerged that the migration agent wrongly understood an earlier document, and the Tribunal pointed out the applicant claimed to have been selected on merit.  The Tribunal did not attribute that inconsistency to him in the “Findings and Reasons” section of its decision or use it as a reason to reject the claims.

73                  The applicant did not claim to fear persecution simply by reason of being a stateless Palestinian who had fled Syria. That does not mean the Tribunal erred by first addressing the circumstances of such people.  The Tribunal cannot, moreover, be criticised for addressing that issue when the applicant’s migration agent in the submission dated 16 February 2001 after the hearing contended the applicant had a well-founded fear of persecution, inter alia, because of the overall human rights situation in Syria or because of his Palestinian ethnicity.  The Tribunal referred to independent country information which indicated that such persons are not persecuted in Syria.  It then addressed the applicant’s particular claims.  It addressed whether he might be suspected of PLO associations, as he claimed.  It concluded firstly that the applicant, simply as a Palestinian, would not be so regarded in Syria as he himself did not claim any active PLO involvement.  It then concluded he would not be so regarded, despite his claimed family activities.  It rejected that claim for a combination of reasons.

74                  The submission on behalf of the applicant further seeks to criticise those reasons.  In my view, those criticisms amount to an attempt to re-argue the merits of the Tribunal’s findings on that matter, and do not demonstrate error of law on its part.  The criticisms point to matters such as the applicant’s age at the time of the alleged bridge bombing, the possibility of the Syrian authorities maintaining an interest in those who perpetrated that event, and explanations for the applicant’s lack of detailed knowledge of his father’s claimed role and activities for the PLO.

75                  The submission also criticises the Tribunal for rejecting the applicant’s evidence about being selected to undertake a dangerous military mission.  It referred to his experience, his status and his relative training.  It was, in my view, open to the Tribunal to think that the Syrian army would have better trained and experienced personnel to undertake such a task, and the factors to which it referred were rational.  Again, in my view, the submission in substance is an attempt to reargue the factual merits of the Tribunal’s decision.

76                  The Tribunal’s rejection of the claim to have been sentenced in absentia to imprisonment for five years for desertion, including it not being satisfied of the existence of a document to which the applicant referred (but did not produce) said to confirm that sentence, was also attacked, as was the Tribunal’s finding that any penalty actually imposed for desertion would not be imposed or fixed for any Convention reason.  Again, in my judgment, the attack is simply as to the merits of those findings.

77                  The submission also criticises the Tribunal’s conclusion that it was not satisfied that the applicant left Syria in circumstances where he feared serious harm and its finding he came to Australia for other reasons.  It is said not to be a logical conclusion.  In my view the submission attributes too narrow a focus to the words “on the basis of all the evidence discussed above”.  The Tribunal has explained why it did not accept each of the applicant’s substantive claims.  Having done so, it was open to the Tribunal to conclude as it did.

78                  The applicant further attacked the Tribunal’s finding that the applicant left Syria normally and legally, given that it was not satisfied that there are particular reasons why his journey out of Syria would have been officially hindered.  It is said to assume he had completed his military service, and to ignore or overlook a document purporting to be a notification from Syrian Intelligence Services Administration apparently certifying that, upon questioning the applicant’s mother, it had been ascertained that “the deserter”, the applicant, “was able to escape” from Syria in February 2000.  In Durairajasingham McHugh J explained at 417-418, [36] – [41] that, if the reasons for decision make it clear that it considered all “facts”, then it has not failed to take into account relevant considerations so as to commit jurisdictional error.  Although the Tribunal has not expressly referred to the document in its reasons, it has clearly addressed the question whether the applicant left Syria legally or “on the run”.  It was not satisfied that the applicant deserted from the Syrian army.  It therefore had regard to, and rejected, the evidence to the contrary.  That was principally the applicant’s evidence, which it discussed at length.  As McHugh J said at 422 [64] – [65], the Tribunal is not then obliged to refer to all the evidence it rejected, or to which it gave no weight.  Its rejection of the claim was based in essence upon its assessment of the applicant’s own evidence.  I do not consider it was then required to explain why it gave the document no weight, because it was not a reason for the Tribunal’s decision.  The Tribunal was not required in that circumstance to give “the sub-set of reasons” why it rejected the document as having probative weight (per McHugh J at 423, [67]).  In addition, this contention of the applicant does not confront the Tribunal’s alternative finding that, even if the applicant had deserted from the Syrian army or had left Syria illegally, any punishment to which he is vulnerable would not be imposed or increased by reason of his Palestinian ethnicity or any Convention reason.  The applicant challenges the conclusions as ignoring independent country information.  The Tribunal did, however, refer to independent country information which indicated that Palestinians in Syria are treated in the same way as Syrians for deserting or for leaving the country illegally.  It was therefore open to the Tribunal to reach those views.

79                  The Tribunal gave several reasons for rejecting the applicant’s claim that the Syrian authorities might accuse him of passing military or state secrets to Australia.  Firstly, it was not satisfied that the applicant had access to any of Syria’s military or state secrets.  It did not believe the applicant would have been selected for the secret mission as he claimed.  And it did not think that any “knowledge of sophisticated Israeli monitoring equipment” in the area where he was to be sent was secret, even if the applicant had been sent there.  The applicant did not in fact undertake that mission.  The Tribunal found the Syrian authorities would not “believe the applicant possessed valuable secrets simply because he deserted”.  There are several related contentions of the applicant about those findings.  They must be addressed in the context that the Tribunal’s reasons are not to be read with an eye keenly attuned to the perception of error:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.  The Tribunal’s reference to Israeli intelligence information is said to reflect a misunderstanding of the applicant’s claim, namely that he had access to Syrian intelligence information.  The Tribunal’s reasons at this point clearly show it understood the applicant’s claim.  It is Syria’s military or state secrets to which the Tribunal generally referred.  Its reference to Israeli information is in relation to the applicant explaining, in the face of the Tribunal’s questioning, why he might be thought by the Syrians to have secret information.  The applicant suggested the secret information might be about the area he was to go into on the mission.  It was therefore appropriate for the Tribunal to note both that he did not do so, and that the Israeli monitoring equipment was well known, so that it did not accept his claim that the Syrians might suspect him of having obtained that sort of secret information.  The Tribunal had already said the applicant would not have had access to Syrian military or state secrets for the reasons it gave.  I also consider the Tribunal’s reference to the applicant not being suspected by the Syrian authorities of possessing “valuable secrets simply because he deserted” as being a shorthand way of expressing his claim, and rejecting his claim, that he had deserted because he did not want to undertake the secret mission and having come to Australia with knowledge of Syrian secrets after deserting he might disclose those secrets.  The statement of the Tribunal that the Syrian authorities would not “impute secret knowledge to the applicant simply because he came to Australia” is also, in my view, an abbreviated way of saying that the Tribunal considered the applicant had not received any Syrian secrets and would not be the more suspected of doing so because he had come to, and sought asylum, in Australia.  It was not erroneous for the Tribunal to address whether the applicant’s “profile” might lead the Syrian authorities to suspect him of having passed secrets to Australia, simply because the applicant had not expressed this aspect of his claim in that way, as overall in my view the Tribunal’s reasons demonstrate that it understood the applicant’s claims on this topic and addressed them.

80                  The Tribunal’s approach to the applicant’s claim to have a well-founded fear of persecution for a Convention reason for being a failed asylum-seeker in Australia is also criticised.  The Tribunal identified the independent country information upon which it relied.  The contention that it ignored relevant independent country information is not made out.  The Tribunal’s finding that the applicant “knowingly or unknowingly” exaggerated the significance of certain incidents is a little obscure.  It is unclear to what incidents the Tribunal is referring.  However, its observation is not inconsistent with its earlier rejection of his claims.  It has found they did not occur as the applicant claimed, but has not positively found that the applicant set out deliberately to mislead.  Its rejection of the claims is by reference to other known events, or to the implausibility of his story.  It did not need to find whether the applicant’s claimed fear of persecution is or is not genuinely held, because it was not satisfied that the events he reported (whether or not he believed those events to have occurred) did not occur and so he did not hold a well-founded fear of persecution for a Convention reason if he were to return to Syria.

81                  For those reasons, in my judgment, ground 11 of the grounds of review is not made out.

82                  Ground four of the grounds of review overlays with ground seven, and in turn those grounds lead into grounds nine and 10 of the grounds of review.  I think they can be dealt with together.  They involve claims that the Tribunal misapplied the law by failing to ask whether the applicant has a well-founded fear of persecution for a Convention reason, and instead asking a question which imposes some stricter test upon the applicant to satisfy the criterion in s 36(2) of the Act.  They also include claims that, as part of that process, the Tribunal made a decision where there was no evidence or other material to justify the making of the decision, so as to enliven s 476(1)(g) of the Act.

83                  The starting point for the submission is that the Tribunal, despite having warned itself in appropriate terms of the need to address the credibility of claims by a visa applicant sympathetically, failed to do so.  The contention first is that the Tribunal did not exercise sufficient care to give the applicant an opportunity to clarify uncertain evidence.  The Tribunal is also criticised for its use of independent country information.  It referred to that which showed the extent to which Palestinians living peacefully in Syria are accorded rights, and the extent to which they do not enjoy rights, equivalent to Syrian nationals.  It did not refer to the independent country information which suggested vulnerability to persecution of Palestinians in Syria who are, or are perceived to be, actively anti-Syrian.  The Tribunal, however, did not accept the applicant is a person who is, or might be perceived to be, anti-Syrian to the extent that he would attract the attention of the authorities.  Consequently, I do not consider the fact it did not refer in any detail to independent country information about how activist anti-Syrian Palestinians are treated as indicating any approach on its part which does not address the critical question carefully.  If there be any such approach, it should be apparent in the Tribunal’s addressing the facts as claimed by the applicant.  It specifically considered how returned asylum-seekers are treated by Syrian intelligence officers, referring to country information on the topic.  The submission also refers to independent country information which shows how deserters may be treated, and which points to human rights violations by Syria’s security forces.  The Tribunal specifically found, consistent with the independent evidence, that a Palestinian deserter would be treated no differently from a Syrian deserter.  Nor does the country information referred to in the submission suggest the human rights abuses of the Syrian authorities are focused upon persons such as the applicant or are focused for any Convention reason.  Whilst the treatment which those reports refer to is consistent with the sort of treatment the applicant claims was meted out to him whilst he was in detention, the Tribunal in my view is not shown to have asked itself the wrong question by not specifically referring to that correspondence or information.  Similarly, whilst the Tribunal did not refer to certain country information which indicated that relatives of fugitives have been known to be detained to obtain confessions or the surrender of the fugitives, that does not in my view tend to indicate that the Tribunal did not address the question predicated by Art 1A(2) of the Convention.

84                  In my judgment, none of those matters indicated that the Tribunal’s decision was not authorised by the Act or was based on jurisdictional error or error of law as contended for by the applicant.

85                  This ground of review also contends that the Tribunal did not properly address the question dictated by the Act whether the applicant has a well-founded fear of persecution for a Convention reason:  see Guo at 575-576 and Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 220 at 240-241.  There will be cases where the Tribunal, properly to address and apply the test predicated by s 36(2) of the Act and Article 1A(2) of the Convention, will have to engage in reasonable speculation to take account of the chance that past events may have occurred, even though it thinks that they probably did not.  Lee J in W321/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 210 said at [30]:

“The Tribunal cannot exclude an applicant’s account from the material the Tribunal is obliged to consider, by relying upon a bare assertion that the applicant’s account is “implausible”.  There must be facts found that are inconsistent with claimed events, or the claimed events must be so beyond the human experience of possibilities that they may be said to be inherently unlikely.  As stated by the United States Court of Appeals in Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7^th Cir. 1992) at 1131:

                ‘A bare conclusion is not an adequate discharge of an administrative agency’s responsibilities unless the ground or argument that it is rejecting is frivolous.’”

86                  In that case, his Honour considered the Tribunal had erred in not taking into account the possibility that certain events reported by the visa applicant had occurred, and the possibility that those events had occurred for a Convention reason.  The Tribunal had fallen short of addressing those questions when it should have done so, having regard to its findings which, at their highest, recorded that it was not persuaded of the particular past events claimed.

87                  The consideration of the Tribunal’s reasons referred to above shows that this contention is not made out.  As McHugh J explained in Durairajasingham at 423 [67], a finding on credibility is the function of the Tribunal par excellence.  It may reject claims because, in its view, they are inherently unlikely to have occurred as alleged.  In this matter, the Tribunal has rejected as unreliable the applicant’s claims about his 1997 arrest and detention, and the reasons for and occasions of his two desertions from the Syrian army partly from its perception of the way the applicant gave evidence, including its vagueness on matters on which it expected the applicant to be more specific, and the emphasis he placed on aspects of his claims from time to time, and partly from its view that features of his claims were inherently improbable, and partly from independent country information.  Although the view that a claim is inherently improbable may be unexplained because it is self-evident, the Tribunal has explained why it considers some of the applicant’s claims to be inherently unlikely.  I do not consider its reasons demonstrate that it did not apply the “well-founded fear of persecution” question according to law.  Neither its language nor its approach indicates, in my view, that in assessing whether past events have occurred as the applicant claimed, the Tribunal was doing other than making findings so as to inform its consideration, according to law, whether he has a well-founded fear of persecution for a Convention reason.

88                  Senior counsel for the applicant referred to certain passages in the Tribunal’s reasons which, it was contended, indicate nevertheless a failure to ask the correct question or to ask the correct question properly.  I think the references, in context, do not show such an error on its part.  The first passage referred to in this part of the submission is as follows:

“As the applicant himself states that he had never been a PLO militant or taken part in PLO political activity, I am not satisfied that he had a profile that would cause him to be automatically targeted as a Fatah operative of concern to the Syrian authorities.”

It is correct, as contended, that the applicant did not claim to have been targeted by the Syrian authorities because he himself was a PLO operative.  But this passage in the Tribunal’s reasons is only the first in a series of steps indicating why it was not satisfied that the applicant was detained in 1997 and tortured for five months over a PLO connection, or that he might face persecution for such a connection.  The independent country information indicated that perceived PLO activists and not Palestinians, even pro-Fatah Palestinians, would be the subject of attention by the security forces.  It was legitimate for the Tribunal to see whether the applicant fell into that group.  On his own evidence, he did not.  The Tribunal then proceeded to address the reasons why he might be perceived to have a family PLO link.  It was not satisfied such a link existed.  It explained why.  It has not misapprehended the applicant’s claims or failed to address them in that regard.

89                  The second passage in which it is criticised on this score occurs where the Tribunal, having rejected the applicant’s claims about why he left Syria fearing serious harm, and having found he came to Australia for reasons unconnected with the Convention, said:

“I am therefore not satisfied that he left Syria illegally.”

It is contended that that step is not logical, and results in the Tribunal failing to ask whether the applicant has a well-founded fear of persecution because it focuses on how he left Syria rather than his reasons for doing so.  The suggested illogicality exists only in the strict sense, and if the sentence complained of is seen as flowing only from the particular claims rejected immediately beforehand.  However, the applicant’s claim was that he deserted the army in March 2000 and the same day fled illegally to Lebanon.  The fact of him deserting the army, his reasons for doing so, and his illegal departure from Syria were bound together.  The Tribunal could reasonably conclude that the applicant’s claim that he left Syria illegally – being tied up with the claim which the Tribunal did not accept that he deserted the army to avoid undertaking a special mission – was also not accepted by it.  That does not flow as a matter of strict logic, but it is a rational and reasonable step for the Tribunal to have taken.  It was also relevant for the Tribunal to consider whether Palestinians in Syria not wanted by the authorities could obtain travel documents to leave Syria.  Its finding that the applicant left Syria legally and normally was a matter upon which it was entitled to make a finding, as it was a matter then relevant to its consideration whether at the time of the Tribunal’s determination the applicant has a well-founded fear of persecution for a Convention reason if he returns to Syria.

90                  The third passage to which senior counsel for the applicant drew attention concerned the applicant’s claim that he feared returning to Syria because he would be suspected of having passed Syrian secrets to Australia.  In the course of its reasons explaining why it did not accept that claim, the Tribunal said:

“I do not consider that the Syrian authorities would impute secret knowledge to the applicant simply because he came to Australia.”

That passage is but part of the Tribunal’s reasoning in relation to the claim.  First, it was not satisfied the applicant would have had access to important military and political secrets.  It explained why.  Then it found that the Syrian authorities would not suspect him of having such secrets, even if he had deserted the army.  Similar reasons for that conclusion apply.  The Tribunal then, in the passage complained of and the following passage, excluded further possibilities:  that the Syrian authorities might suspect him of having such secrets by reason of having come to Australia, or by reason of any profile as a PLO activist or sympathiser.  To address those possibilities does not demonstrate the Tribunal somehow asked itself the wrong question.  His claimed fear of persecution for being suspected of releasing secrets to Australia could only be well-founded if, amongst other things, there was a risk the Syrian authorities might suspect him of having such secrets.  The Tribunal found there was no such risk.  That was an appropriate matter to address as part of its consideration of the ultimate question arising under Art 1A(2) of the Convention.  In my judgment, the Tribunal did not err in doing so.

91                  Those reasons also deal with ground seven of the grounds of review.

92                  The applicant further contends that the Tribunal made a series of findings without any evidence to support them.  The findings referred to are:

“·       The Syrian government had no interest in the Applicant and his father.

·         The Syrian army was not still looking for the Applicant’s father in 1997.

·         The applicant had not been detained or tortured.

·         The applicant had never deserted at all.

·         The applicant was not at risk because Palestinians in general in Syria and Palestinians in Syria who are supporters of the PLO who cause no trouble to Syria are not at risk.

·         The applicant was not chosen for special duties and a dangerous mission in the Syrian army.

·         The applicant left Syria legally.

·         The applicant was not at risk of detention, torture and execution.”

I do not consider those various claims are variously made out.  Following the amendment to the Act by the Migration Legislation Amendment Act 1989 (Cth), it was the satisfaction of the respondent about the status of the visa applicant which became a criterion for the grant of the visa.  The eight findings the subject of this submission are each in the nature of conclusions, following the Tribunal’s non-acceptance or rejection of the applicant’s particular claims.  Each of the particular claims about what had happened to the applicant in the past was, in my judgment, addressed by the Tribunal in a manner which did not involve reviewable error on its part.  Not being satisfied that those claims were correct, the Tribunal, which had also concluded that Palestinians in Syria of no special adverse interest to the authorities enjoy most rights of national Syrians, found the applicant was able to and did leave Syria normally and legally.  It did not make positive findings in terms asserted by the applicant, but said it was not satisfied as to those matters.  The one exception is its positive finding that the applicant left Syria legally.  The terms of its conclusions might give rise to an obligation to consider whether, notwithstanding those conclusions, the applicant has a well-founded fear of persecution for a Convention reason, but that issue is addressed elsewhere.

93                  To a limited extent, the applicant has relied upon s 476(1)(g) and s 476(4)(b) of the Act.  In terms of s 476(4)(b), it is argued that the particular fact that the Syrian army was not still looking for the applicant’s father did not exist.  I do not accept that contention.  The Tribunal’s reasons contain the following passage, which includes reference to the applicant’s father:

“Given Syria’s power in Lebanon, I consider that since the Syrians apparently knew the identity of the applicant’s father, they would have arrested him long ago if they had wished to do so.  There were about 40,000 Syrian troops in Lebanon at the end of the civil war in 1991, and there are still more than 20,000 troops there today (see US State Department reports on Lebanon over the past 10 years).  The Lebanese authorities protect Syria’s interests and assist in apprehending people of concern to the Syrian authorities (Lebanese Army Arrests Anti-Syrian Christians, Reuters, 22/4/2001, CX52439).  According to the country information given above, the Syrians know exactly which Palestinians are pro- and anti-Arafat in Lebanon as well as Syria.  Given all of this, I consider that if the Syrians had wished to seize the applicant’s father and other family members, they would not have been arresting the applicant and interrogating him over his father in 1995, but would have moved directly against the father in Lebanon, and done so much earlier than 1995.”

94                  That passage includes the evidence the Tribunal relied upon for its view that the Syrian authorities were not still seeking the applicant’s father.  It was not contended that the Tribunal’s reasons referred to material which was fabricated, or which conveyed the contrary of that which the Tribunal thought it conveyed.  Consequently, the particular fact identified, even if accepted as a fact found by the Tribunal, has not been shown not to exist.  The evidence of the applicant to the contrary does not prove that the particular fact did not exist.  This ground of review does not provide a means of revisiting the Tribunal’s findings on matters where there is competing evidence:  Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264.

95                  Section 476(1)(g) and s 476(4)(b) were also relied upon in relation to the Tribunal’s “finding” that the applicant was not of particular interest to the Syrian authorities by reason of his suspected family PLO contentions.  The same considerations apply.  The Tribunal was not satisfied about that claimed fact or the background matters said to give rise to it.  It gave its reasons.  The underlying facts are those against which the test prescribed by s 476(1)(g) and (4)(b) must be applied.  The applicant’s evidence, the reliability of which the Tribunal was not satisfied on those matters, does not demonstrate the particular facts “found” by the Tribunal did not exist.

96                  Ground six can be shortly dealt with.  The suggestion about the existence of a document certifying the applicant having been sentenced in absentia to five years’ imprisonment for desertion was made by the applicant at the hearing on 6 February 2001.  At the end of the hearing, the Tribunal gave the applicant a week to present the document, but pointed out that its decision would largely turn on the assessment of the applicant’s oral evidence.  The applicant indicated he might not be able to get a copy of the document at all.

97                  The Tribunal received, and considered, submissions of the applicant’s migration agent of 16 February 2001 and 12 April 2001 and of the applicant of 27 March 2001, following the hearing.  No such document was then presented, nor further time sought to present it.

98                  In my judgment, the applicant has not demonstrated reviewable error on the part of the Tribunal and the application should be dismissed.

Associate:

Dated:              22 August 2002