FEDERAL COURT OF AUSTRALIA

M v Minister for Immigration and Multicultural Affairs [2003] FCA 1185

MIGRATION – review of decision of Refugee Review Tribunal – refusal to grant protection (class XA) visa – whether Tribunal’s decision affected by jurisdictional error – relevant and irrelevant considerations – no error shown – applicant essentially asking the Court to assess the merits of his protection application

Migration Act 1958 (Cth), s 476(1)

Migration Regulations 1994 (Cth), Schedule 2, clause 866.221

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied

Cujba v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 110 considered

Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881 referred to

Nagappan v Minister for Immigration and Multicultural Affairs [2001] FCA 863 considered

Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 referred to

Hagi-Mohamed v Minister for Immigration and Multicultural Affairs [2001] FCA 1156 referred to

W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387 referred to

VAAW v Minister for Immigration and Multicultural Affairs [2002] FCA 1245 referred to

VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202  applied

Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 applied

Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 applied

Craig v The State of South Australia (1995) 184 CLR 163 applied

Ullah v Minister for Immigration and Multicultural Affairs [2002] FCA 60 referred to

Awan v Minister for Immigration and Multicultural Affairs [2001] FCA 1036 followed

Capa v Minister for Immigration and Multicultural Affairs [2001] FCA 898 referred to

Kahn v Minister for Immigration and Multicultural Affairs [2001] FCA 736 referred to

M v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 332 of 2001

KENNY J

MELBOURNE

27 OCTOBER 2003

THE COURT ORDERS THAT:

1.      The application be dismissed.

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

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

REASONS FOR JUDGMENT

1                     This is an application under s 476(1) of the Migration Act 1958 (“the Act”) for review by this Court of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 March 2001, affirming a decision of the respondent, by his delegate, to refuse the grant of  protection (class XA) visas to the applicant, his wife and children.  The law to be applied is that which existed prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

background facts

2                     The Tribunal found that the applicant was a citizen of Jordan and of Palestinian Arab ethnicity.  He entered Australia on 6 August 2000.  At the time of his arrival, he held a Jordanian passport and an Australian visitor’s visa that was valid until a date in November 2000.  The applicant’s wife and three children arrived in Australia on 30 August 2000.  They also held visitor visas at the time of their arrival.  The applicant and his wife lodged applications for protection visas for themselves and their children with the respondent’s department on 19 September 2000.  In these applications, both the applicant and his wife made specific claims to be refugees.  The children were listed as members of the family unit. 

3                     A delegate of the respondent refused the applications on 17 November 2000 (“the delegate’s decision).  On 24 November 2000, the applicant, his wife and family applied for review of the delegate’s decision by the Tribunal.  The Tribunal held a hearing on 22 February 2001.  The Tribunal affirmed the delegate’s decision. 

4                     The decision under review in this proceeding is the Tribunal’s decision that it is not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason if he were to return to Jordan. 

legislative framework

5                     Provision is made in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (“the Regulations”) for protection visas.  Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol (collectively, “the Convention”). 

6                     Protection obligations may arise in relation to a person who falls within the definition of “refugee” in the Convention.  A refugee is defined in Article 1A(2) of the Convention as any 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 … .

7                     Before the Tribunal, the applicant claimed that he had a well-founded fear of persecution if he were to return to Jordan “on grounds of his actual and perceived political opposition to the Jordanian government, his Palestinian Arab ethnicity, and his membership [of] the Palestinian organisation, Hamas”.  By virtue of cl 866.222 of Schedule 2, where a person making specific claims is granted a protection visa, members of his or her family unit may also be granted a protection visa, though making no specific claims of their own. 

the tribunal’s reasons for decision

8                     After considering the relevant legislation and the Convention, the Tribunal turned its attention to the applicant’s specific claims and the evidence before it.  The Tribunal first referred to the applicant’s claim to be stateless, and to his educational, family and business background.  It then referred to the applicant’s account of his participation in demonstrations and other anti-government activities in the early 1990s, and to his joining Hamas.  The Tribunal noted the applicant’s claim that he was approached by authorities as he was leaving a mosque and that he was warned to stay away from political matters.

9                     The Tribunal considered the applicant’s claims concerning his membership of Hamas during the mid-1990s, when the Jordanian government began to restrict and monitor the activities of such organisations.  It referred to his claims of detention and arrest on numerous occasions.  It noted his evidence of being summoned to attend the Security Office in Amman in the late 1990s, and of being threatened and detained upon his refusal to provide the security authorities with information concerning Hamas activities. 

10                  The Tribunal referred to the applicant’s attempt to withdraw from Hamas, to his conversation with a high-ranking member of the movement, and to his claim that he was advised by this person to take more time to consider his withdrawal because “he knew too much about the movement.”  The Tribunal also referred to the applicant’s evidence that he was summoned repeatedly by the Security Office for information and to his further detentions following his repeated refusals to cooperate with the authorities.  It noted his evidence that his wife had been attacked during a two-day period of detention and that he and his wife had reported the attack to police. 

11                  The Tribunal next referred to the applicant’s account of events subsequent to August 1999 when, under Jordanian law, Hamas became an illegal movement but continued to operate, albeit illegally.  It noted his claims of being harassed at work, having additional taxes imposed upon his business and having his children expelled from school.  The Tribunal noted that the applicant was granted a tourist visa to visit Australia during the time when he was allegedly being arrested, detained and mistreated. 

12                  The Tribunal described his claim that, on a day in August 1999, Jordanian security officers followed him whilst he was driving his car.  He said that he had eluded them, gone home, and later spoke to his wife by telephone.  He said that she told him that she had been given a subpoena directing him to attend court that day.  He claimed that his lawyer subsequently told him to leave Jordan as soon as possible.  The Tribunal further noted the applicant’s account of his, and later his family’s, departure from Jordan.  The Tribunal observed that the applicant:

… claimed he would not be safe in Jordan because the government was harsh and repressive and they had punished him in the past for expressing his political opinion peacefully.  Hamas believed he had betrayed the organisation and this had led to the attack on his wife.

There was an extensive account of other evidentiary material, as well as of the submissions made to the Tribunal. 

13                  Under the heading, “Findings and Reasons”, the Tribunal rejected the applicant’s original claims to be a stateless Palestinian.  Instead, it found that he and his family were Jordanian citizens.  The Tribunal added:

The Tribunal does not accept the assessment of the Applicant’s adviser that the matter of nationality is irrelevant to the Applicant’s general credibility.  The matter of nationality is a serious one; it is not a matter of small importance.  The principal Applicant is a well-travelled person who would be aware that in his travels he would be required to state his country of nationality or residency on various immigration forms.  He was accustomed to using this information.  His hesitancy on the matter then before the Tribunal is unconvincing.  The Tribunal can find no other explanation for this denial of his citizenship except as an attempt to increase his chances of being recognised as a refugee.  This does not of itself mean he is not a refugee, but it does mean that he has not been credible on this matter. 

14                  The Tribunal found that the applicant’s identity as Palestinian was not a source of educational or economic discrimination against him or his family.  In doing so, it accepted the accuracy of a document provided to the respondent’s Department by the applicant.  That document indicated that his daughter was attending school at the time when he claimed she had been expelled because of his political profile.  The Tribunal also found that the applicant’s evidence in relation to his business was inconsistent.  In particular, it found that evidence provided by him to the respondent’s delegate in relation to the sale of his business prior to his departure from Jordan was inconsistent with his claim that the Jordanian authorities had forced him “to close his business down”.

15                  The Tribunal considered a range of country information in assessing the applicant’s core claim founded upon his membership of Hamas (e.g., Frank Tachau (ed), Political Parties of the Middle East (Greenwood Press, Conn, 1994, pp 444-445); Department of Foreign Affairs and Trade (1994), CIS On-Line Information Services, AM15990 & CE418108, 2/9/94, CX15604; US Department of State Report on Patterns of Global Terrorism (1995), CIS On-Line Information Services, April 1996, pp 20-21, CX24209; Lamis Adoni, “First Test for Karabati”, Middle East International, No.522, 29 March 1996, pp 10-12, CX20987; and Reuters Business Briefing, sourced from BBC Monitoring, 11 January 2001, CX48470).  It rejected the applicant’s claim that Hamas was a peaceful organisation.   The Tribunal accepted that the applicant became a sympathiser with Hamas in the early 1990s; that he participated in demonstrations at that time; and that he could have been stopped at a mosque and advised “to stay away from mixing religion with politics”.  It concluded, however, that there was nothing persecutory about such a warning from Jordanian authorities.  In addition, the Tribunal found that, during the mid-1990s, the Jordanian government was keen to contain Palestinian anti-Israeli activity, rather than adopting a “policy of suppression or oppression of Hamas members and supporters”.  Nor did Jordan prevent its Palestinian citizens and residents from having “rejectionist” opinions.  The authorities were concerned, so the Tribunal found, with those who (unlike the applicant) were “active in rejectionist organisations such as Hamas where the organisations carried out active (and violent) campaigns against Israel.” 

16                  The Tribunal rejected as implausible that the applicant was unaware that intelligence officers would be present in mosques where rejectionist groups or individuals gathered.  It also rejected his claim that, from the mid-1990s onwards, he was a habitual detainee and, therefore, constantly under surveillance for reasons of his pro-Hamas activities.  It stated:

[T]he Tribunal is not satisfied with the Applicant’s claim that he was detained on many occasions from the mid 1990s onwards for reasons of his pro-Hamas activities.  He has claimed at least ten arrests in one year, ten or twelve in the next and an increase in the number the following year.  On any reading this would make him a serial offender and it is not plausible that the authorities would not have taken much more serious and long-term action against him.  The alleged pattern of arrests and releases makes no sense if he was not, as he has claimed, a leader or prominent activist.  It is implausible that no charges were laid against him or attempts taken to prevent him from travelling overseas.  He took trips to several countries in the late 1990s.  The Tribunal does not accept, that if he were an habitual detainee and therefore constantly under surveillance as he has claimed, that he would have been permitted to leave the country for his usual business trips.  One of the aspects of Jordanian policy reported from various sources is that they have, on occasion, confiscated passports to prevent travel by known activists. 

It is for these reasons that the Tribunal does not accept the purported subpoenas and arrest and investigation notices as genuine.  In an age when almost any document can be forged or fraudulently obtained, the genuineness of such, especially where Australia has a limited ability to test authenticity, is to be tested within the framework of all the claims.  The Tribunal finds that the total number of claimed arrests and periods of detention and the claim of constant surveillance and harassment are contradicted by the Applicant’s ability to continue with his businesses and travel overseas.  As indicated by the country information cited above, the Jordanian authorities have taken away passports from those whom it suspects of being Hamas activists abroad.  They had some five years in which to limit the Applicant’s travels but did not do so.

17                  The Tribunal also rejected the applicant’s claim that the authorities had invited him to become an informant, given his low profile and lack of knowledge about Hamas activities at a national level. 

18                  The Tribunal found that the banning of Hamas in Jordan did not involve or constitute persecution and that Jordan’s “crackdown” on Hamas was not violent.  It rejected the applicant’s claim that his membership of Hamas resulted in constant and increasing harassment amounting to persecution forcing him to flee Jordan.  The Tribunal referred to the deportation to Qatar in November 1999 of four Hamas leaders following “a government clampdown on Hamas”. In doing so, the Tribunal had regard to country information showing that there was “negotiation and mediation between Jordan’s government and Hamas”.  The Tribunal said:

[T]he evidence is that the Jordanian authorities have long experience in dealing with Hamas, that it is not a secret organisation and that deals are done between the government and the organisation.  There are complexities and subtleties in the relationship rather than a stark one of government repression.  The Tribunal then rejects the Applicant’s claim that his membership of Hamas resulted in constant and increasing harassment of him amounting to persecution and forced him to flee Jordan.

19                  The Tribunal found the applicant’s account of his departure from Amman implausible and rejected it.  It stated:

It has considered the alleged timetable but does not accept that he could accomplish all he claimed in the time he has stated, and all without arousing the attention of the authorities as to his whereabouts.  … .  The Tribunal does not find his claim that he had shut the windows and locked the door means that he was protected from surveillance by the security authorities had they been interested in him.  … .

The Tribunal also rejects his claim that he could have reached the airport within twenty minutes.  According to the Lonely Planet Guide, the airport is 35 kilometres from the city of Amman.  The Applicant claimed that he left his house sometime after 6.30 and travelled by his own car to the airport without the security forces knowing.  The Tribunal finds this implausible as it does his claim that he was able to pass through all the necessary checks before boarding an international flight with some last minute bribery arranged by a lawyer.  … . 

The Tribunal also regarded the fact that the applicant delayed in using his visitor’s visa as relevant to the issue of whether he had a fear of persecution. 

20                  The Tribunal noted that the applicant “gave contradictory evidence on the nature of the Hamas organisation, claiming that [it] was peaceful and yet also that it turned on him in a quick and vicious manner when suspicion fell on him that he was a government informant”.  It added:

As the Tribunal has been unable to accept his account that the security authorities took an active and persecutory interest in him and tried to suggest to others that he was an informant, so it follows that it rejects his claim that this was the reason for threats against himself and the attack on his wife.

21                  The Tribunal concluded that “whatever led the Applicant to sell his business and bring his family to Australia, it was not because he faced a real chance of persecution at the hands of the government authorities or of Hamas as he has claimed”.

22                  The Tribunal concluded by considering the applicant’s wife’s claims, and other evidence before it, including a letter from the applicant’s lawyer.  In connection with the wife’s claim, the Tribunal said:

The Tribunal accepts that this Applicant was attacked by some unidentified persons and that she suffered injury and on-going trauma.  It accepts the evidence of a counsellor who has seen the Applicant wife on three occasions to the extent of her diagnosis as to the psychological difficulties faced by the Applicant wife.  It does not accept that the counsellor is able to assess the actual source of and reasons for the attack on her.

Her evidence, although somewhat vague, was that she was attacked by several people, that it was reported to the police but that they did not follow [it] up in a way she thought was satisfactory.  The fact that it was reported to the police suggests, although this is only speculation, that the Applicant wife and her husband regarded it as criminal, rather than a politically-motivated, act.  The evidence also was that they sought advice from a lawyer who appeared to have given the sensible advice that unless there was some indication of who the perpetrators were, it was difficult to do anything more.

The Tribunal cannot speculate on the source of the attack.  What it cannot do is accept that the attack on the Applicant wife was for a political reason or that the perpetrators were members of Hamas seeking revenge on the Applicant husband.

23                  The Tribunal accepted that the applicant and his wife had “strong subjective fears”, although not for a Convention reason.  It referred to the evidence of another witness, acknowledging that he knew something of Palestinian politics, but did not accept that “his assessment of the situation fits the Applicant’s particular circumstances”.  The Tribunal further rejected that “the letter from the Applicant’s lawyer as one which represents the true facts of the matter”.  In conclusion, the Tribunal did not find that the Applicant’s “fear is well-founded and that it is a fear of persecution by the Jordanian authorities or by Hamas”. 

grounds of review

24                  By agreement, the parties treated a document entitled “Applicant’s Contentions of Fact and Law”, which was filed on 9 August 2001, as further and better particulars of the application for judicial review.  At the hearing, however, counsel for the applicant abandoned reliance on pars 17 to 21 and 27 to 45 of this document.  After the hearing, and at my direction, the parties each filed a “Supplementary (Annotated) List of Authorities” on the no evidence ground. 

25                  The applicant’s case is that the Tribunal’s decision is affected by jurisdictional error.  The applicant relied upon pars 476(1)(b), 476(1)(c), 476(1)(e) and 476(1)(g) of the Act and the statements regarding jurisdictional error made by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”), at 351-352.  He also relied upon a number of cases decided in this Court subsequent to Yusuf:  see,e.g., Cujba v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 110(“Cujba”); Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881; Nagappan v Minister for Immigration and Multicultural Affairs [2001] FCA 863 (“Nagappan”); Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98; Hagi-Mohamed v Minister for Immigration and Multicultural Affairs [2001] FCA 1156; and W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387.  In connection with the “no evidence” ground, he relied on VAAW v Minister for Immigration and Multicultural Affairs [2002] FCA 1245 (affirmed on appeal: [2003] FCAFC 202) and Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 (“Rajamanikkam”).  The respondent also referred to Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 (“Al-Miahi”).

26                  At the hearing, the applicant submitted that the Tribunal’s decision was affected by jurisdictional error because:

(i)                      it considered irrelevant or non-existent material in rejecting his evidence of detention and the authenticity of the “subpoenas and arrest and investigation notices”; and

(ii)                     it considered irrelevant issues, or acted without a viable evidentiary basis in considering the fact that the applicant and his wife reported an attack upon his wife to the police which indicated that they regarded the attack as criminal rather than a politically-motivated act.

27                  The first submission made by the applicant’s counsel focussed on a passage in the Tribunal’s reasons, which is set out at [16] above.  The Tribunal regarded membership of Hamas as at the “core” of the applicant’s claims.  It follows that the Tribunal’s failure to accept that, by reason of his Hamas activities, the applicant was arrested numerous times over a three-year period was significant to the Tribunal’s decision.  So too was the Tribunal’s failure to accept the “subpoenas and arrest and investigations documents as genuine”.  In written contentions, reiterated at the hearing, the applicant submitted:

This aspect of the [Tribunal]’s decision rests on a string of assumptions, each with no basis in the evidence, as follows:

(a)               That the number of arrests made against the Applicant was unusually high in comparison to the number and frequency of detention of other Hamas activists.

(b)               That leaders or prominent activists of Hamas were arrested with the same or less frequency as the Applicant.

(c)               That a person arrested as often as the Applicant would necessarily be the subject of “more serious and long-term action against him”.

(d)               That a Hamas activist of the level of the Applicant would necessarily be prevented from travelling overseas.

Indeed, contrary to the assumption that the Applicant’s claimed frequency of arrests would necessarily lead to denial of travel, the [Tribunal] concedes that such measures are taken only “on occasion”.  Further, the [Tribunal] gives no identification of the “various sources” upon which it bases its considerations for this aspect of its decision.

28                  Counsel for the applicant submitted that there was evidence, constituted principally by Amnesty International reports, that in and around the relevant years, many people had been arrested in Jordan for political reasons, including individuals who belonged to groups, such as Hamas, which opposed the peace process with Israel; and that many of those arrested were detained on a short-term basis and subsequently released without charge.  For example, Amnesty International On-line (http://www.amnesty.org MDE 16/011/1998, 01/11/98, “Jordan An Absence of Safeguards”) said that:

From the point of view of the Jordanian Government, short-term arrests followed by release could be cases where adequate grounds existed to justify the initial arrest but subsequent investigation showed insufficient evidence to bring charges.  But the prevalence of the practice and the number of those apparently arrested without any intention of bringing them to trial suggests that arrest and short-term detention may be used as a means of harassment and intimidation against suspected government opponents and also as a means of obtaining information concerning members of opposition groups. 

29                  According to counsel for the applicant, whilst there was no evidence to support the particular assumptions upon which the Tribunal proceeded, this and other material before the Tribunal was corroborative of the applicant’s version of events.  Counsel for the applicant submitted:

[The] evidence before the Tribunal corroborated the applicant’s evidence and showed that the treatment meted out to him was entirely typical of the treatment afforded to a low level Hamas member and political opponent and not reserved for the prominent leaders or prominent activists of Hamas … . 

30                  On the second limb of his argument, counsel for the applicant directed the Court’s attention to the Tribunal’s consideration of the alleged attack on the applicant’s wife.  The relevant passages in the Tribunal’s reasons are set out at [22] above.  Counsel contended that the Tribunal’s reasons disclosed no proper basis for rejecting the applicant’s claim that the attack on his wife in her home whilst the Jordanian authorities detained him was politically motivated.  Counsel submitted that the Tribunal’s reasons were “entirely illogical”, because:

… there is no reason why the presence of a criminal motive necessarily excludes a political motive.

Indeed, if the Applicant and his wife believed that the attack had been perpetrated by Hamas members, and feared further attacks from Hamas members, it is surely a logical explanation that they should attempt to seek whatever protection the Jordanian state may have been prepared to give by reporting the assault to the Jordanian police.

Here, again, the decision making process of the [Tribunal] lacks a viable evidentiary basis or other logical support to an extent which involved jurisdictional error … .

31                  The respondents submitted and, for the reasons I am about to give, I accept that none of the matters relied on by the applicant amounted to jurisdictional error.

consideration

32                  The decision in Yusuf did not widen the concept of jurisdictional error as explained in Craig v The State of South Australia (1995) 184 CLR 163, at 179:  compare, e.g., Ullah v Minister for Immigration and Multicultural Affairs [2002] FCA 60, at [19] per Mansfield J; Awan v Minister for Immigration and Multicultural Affairs [2001] FCA 1036 (“Awan”), at [44]–[49] per Weinberg; Capa v Minister for Immigration and Multicultural Affairs [2001] FCA 898, at [30] per Hely J; and Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736, at [15] per Gyles J.

33                  As McHugh, Gummow and Hayne JJ observed in Yusuf, at 352:

… factual error by the Tribunal will not found review.  Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals.  That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language.  If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.  If that is so, the ground in s 476(1)(e) is made out.

In cases of the present kind, the Court considers the alleged error, having regard to the statutory context in which the challenged decision was made, what was before the Tribunal and the Tribunal’s reasons for decision, considered as a whole.

34                  The applicant challenged the Tribunal’s rejection of his claim that, on account of his membership of Hamas, the Jordanian authorities had repeatedly detained him, on the ground that the Tribunal’s rejection depended on particular assumptions that had no evidentiary support.  Relying on this form of challenge, the applicant referred to Cujba and to Nagappan.

35                  In Cujba, Conti J found that the grounds relied on by the decision-maker to cancel a visa lacked any “viable or reasonable basis”.  His Honour said, at 159:

The critical issue remains as to whether the findings I have made … as to the absence of viable and reasonable grounds to support the subject decisions … attract any one or more of the grounds of review propounded by the applicants.  I have concluded that the significance of such findings is of such radical implications in terms of absence of any reasonable or viable evidentiary basis, or to adopt the dictum of Gummow J in Eshetu … such findings are so lacking in support by some probative or logical grounds, as to constitute for the purposes of s 476(1)(b) jurisdictional error within the principles enunciated in Yusuf … in that such findings ignored the relevant material and relied on the irrelevant material exposed in my discussion and observations … above.

36                  I agree with the observations of Weinberg J in Awan, at [48]:

In Cujba, the subject decisions were based upon a process of reasoning by the Tribunal involving “guilt by association” (without even evidence of “association”).  The egregiousness of the errors made meant that the circumstances were somewhat exceptional.  It would be wrong, in my view, to conclude that Conti J took a different view of the scope of jurisdictional error, as adumbrated in Yusuf, than that taken in Khan.

The decision in Cujba, which concerned visa cancellations, offers little, if any, guidance in the present case.  In this case, it was, plainly enough, open to the Tribunal to draw the inferences that led to its rejection of the applicant’s account of multiple arrests and detentions over a number of years.

37                  In its reasons, the Tribunal referred to country information that disclosed that, in 1994, the Jordanian authorities had confiscated the passports of Hamas representatives in Jordan; and that, in 1995, Jordan had expelled some senior Hamas leaders, who did not have Jordanian citizenship.  In rejecting the applicant’s claim that he was under constant surveillance, the Tribunal had regard to the fact that he had travelled in and out of Jordan, on a Jordanian passport, during the relevant period.  That is, he had made business trips to places outside Jordan and, in contrast to some known activists, had not been deprived of his passport.  There is no reviewable error in such an approach.  In addition, the Amnesty International reports, on which the applicant relied, indicated that, in some cases, charges had indeed been laid against individuals on account of their political activities.  Bearing in mind the extent to which the applicant claimed that he had been arrested and detained (though not charged) it was open to the Tribunal to assess the credibility of his claims by reference the Tribunal’s own evaluation of their inherent plausibility, considered as a whole and in light of the country information (which indicated that charges were laid in some instances).  In so doing, the Tribunal inevitably drew inferences and make assumptions relevant to its disposition of the applicant’s case: no reviewable error appears in this regard in this case. 

38                  The decision in Nagappan is also of little assistance in the present case.  In Nagappan, Heerey J held, at [19], that the Tribunal did not consider the actual situation of the applicant because it did not deal “with the case of a man who had lived in a village near Trincomalee all his life and thus would be known to the LTTE and the authorities in that area” but dealt with the case “on the basis that he had lived in Colombo, had contacts there and could easily live there”.  His Honour observed that there was “no basis in the evidence for that latter conclusion”.

39                  His Honour added, at [21]:

The Tribunal has identified a wrong issue, asked a wrong question and relied on irrelevant – or rather non-existent - material so as to make an error of law in the exercise of its power:  Yusuf at[82].  Put another way, the failure to take account of the fact (manifest from the material before the Tribunal, and not just from the affidavit in the present review referred to below) that the applicant had lived near Trincomalee and not in Colombo was a failure to take into account relevant considerations:  Yusuf at [75].

40                  His Honour’s decision turned, however, on a “no evidence” ground, in connection with which he said, at [24]-[27]:

[T]he fifth ground, another no evidence ground, has more substance.  It was submitted that there was no evidence or other material to support the Tribunal’s finding that the applicant had lived in Colombo on previous occasions.  …

…

Here the particular fact – that the applicant has lived in Colombo – is identified.  Plainly there was no evidence of that fact.

... I am satisfied that the Tribunal’s decision was, in the relevant sense, based on that fact.  The fact did not form part of a chain of reasoning parallel to and independent of other chains which supported the decision.  The Tribunal referred to and relied on country information which stated that Tamils who resided in the North and East were at high risk.  Part of the Tribunal’s reasoning is, in essence, that although the applicant is a Tamil, he can live without fear of persecution in Colombo because he has lived there before.

41                  The decision under review in Nagappan was set aside because the application came within par 476(1)(g) and (4)(b) of the Act.  On his Honour’s approach, the non-existent fact also constituted an irrelevant consideration; alternatively the failure to take into account the fact that the applicant had not lived in Colombo amounted to a failure to take into account a relevant consideration.  For the reasons set out below, the applicant’s “no evidence” ground is not sustainable and his Honour’s approach is not apposite in this case.  In the present case, there was, as already noted, material capable of supporting the Tribunal’s rejection of the applicant’s account of his arrest and detention.

42                  The reason why the “no evidence” ground fails is that this case cannot be brought within s 476(1)(g) and (4)(b) of the Act.  These provisions relevantly provide:

(1)               Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

            …

                        (g)  that there was no evidence or other material to justify the making of the decision.

…

(4)               The grounds specified in (1)(g) is not to be taken to have been made out unless:

            …

(b)                the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

43                  A Full Court of this Court (Spender, Tamberlin and Kenny JJ) considered these provisions in VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 (“VAAW”) and, in so doing, referred to many of the relevant authorities.  The effect of VAAW (which discussed Rajamanikkam) is that, in order to succeed on the “no evidence” ground, an applicant must show that the impugned decision could not, or would not have been reached without a particular finding of fact (cf Rajamanikkam, at 234, 236-237 per Gleeson CJ and 240-241 per Gaudron and McHugh JJ); and that there was no evidence on which the fact could be found to exist (cf VAAW, at [33]-[35], citing Rajamanikkam, at 236 per Gleeson CJ, 240 per Gaudron and McHugh JJ; 259 per Kirby J;and Al-Miahi (2001) 65 ALD 141, at 149 per Sundberg, Emmett and Finkelstein JJ.

44                  I accept, as counsel for the respondent submitted, that, for the purposes of the “no evidence” ground, the applicant has not identified any particular finding of fact made by the Tribunal, on which the decision was relevantly based, that might be said to lack relevant evidentiary support.  At most, the applicant has submitted that there was no evidence for the inferences or assumptions that led the Tribunal to reject his claims of arrest and detention.  I accept, as the respondent submitted, that these inferences or assumptions (if drawn or made) were not relevantly findings of fact upon which the decision was based. 

45                  In any case, as already noted, it was, for the reasons already given, open to the Tribunal on the material before it to reject the applicant’s account of his arrests and detentions.  As has been observed many times, it is not open for this Court, in proceedings such as this, to substitute its own view for that of the Tribunal’s on the question of whether an applicant’s claims should be accepted.  It is sufficient that, in this case, there was material before the Tribunal on which it could reach the view it did.  Counsel for the applicant made no separate challenge to the Tribunal’s failure to accept the authenticity of the subpoenas and arrest and investigation notices relied on by the applicant before the Tribunal.  It was open to the Tribunal to reject their authenticity for the reasons it gave.

46                  In connection with the applicant’s wife’s claims, there was also no reviewable error.  Although the Tribunal’s reasons may have been better expressed, the basis for its failure to accept the claim that the attack on the wife was politically motivated was clear enough.  In substance, the Tribunal held that it was not satisfied, on the evidence before it, that the attack was “for a political reason or that the perpetrators were members of Hamas seeking revenge on the Applicant husband”.  Bearing in mind that the Tribunal had rejected the applicant’s account that “the security authorities took an active and persecutory interest in him and tried to suggest to others that he was an informant”, it followed that it rejected his claim that “this was the reason for threats against himself and the attack on his wife”.  Consistently with this, the Tribunal accepted the “somewhat vague” evidence of the wife that several people had attacked her as she claimed but could not “speculate on the source of the attack”. 

47                  The Tribunal’s statement that the fact that the applicant and his wife reported the attack to the police “suggests” that they “regarded it as a criminal, rather than a politically-motivated, act” must be understood in the context of the whole of the Tribunal’s reasons.  Whilst this sentence might have been better expressed, the substance of the Tribunal’s reasons is clear enough.  Read as a whole, they show that the Tribunal was unable to make any definite finding about the reason for the attack and did not accept the applicant’s explanation.  At most, the Tribunal postulated that, considering all the evidence before it, the attack, whilst criminal, was not politically-motivated.  In so doing, it was open to the Tribunal to have regard to the fact that the applicant and his wife reported the attack to the police.  I reject the applicant’s submission that, in considering the wife’s claim, the Tribunal considered irrelevant issues or acted without a viable evidentiary base.

48                  By his submissions in this Court, the applicant asks the Court to examine the making of particular findings of fact upon which the Tribunal acted.  In this case, this is to ask the Court to assess the merits of the case, which the Court may not do.  Specifically, I conclude that:

(i)                      It was open to the Tribunal to reject the applicant’s claims regarding his repeated detention and arrest and to reject the authenticity of the documents said to support these claims.  In so doing, it did not act on irrelevant or non-existent material.

(ii)                     The Tribunal did not act on irrelevant matters or without any evidentiary basis in rejecting the view that the attack on the applicant’s wife was politically motivated and in declining to “speculate on the source of the attack”.

49                  For the foregoing reasons, I reject the applicant’s submission that the Tribunal’s decision was affected by jurisdictional error.  I would dismiss the application with costs.

50                  Once again pro bono counsel has assisted the Court.  The Court acknowledges the very great service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as counsel (or solicitor) in the presentation of argument or in the preparation of a case. 

Associate:

Dated:              27 October 2003