FEDERAL COURT OF AUSTRALIA

VTAG v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 447

MIGRATION – application for protection visa – applicant claimed he was beaten at political demonstration and subsequently detained – Tribunal accepted applicant attended demonstration but did not accept claim that he was detained – Tribunal did not address whether applicant beaten – whether Tribunal required to address that claim – whether “integer” of applicant’s claim to protection – whether Tribunal applied correct test for determining whether applicant had well-founded fear of persecution – whether Tribunal’s conclusion illogical – whether illogical conclusion of itself gives rise to jurisdictional error

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 474

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

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 considered

SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 discussed

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 discussed

Labara v Minister for Immigration and Multicultural Affairs [2002] FCAFC 145 referred to

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

Minister for Immigration, Local Government & Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 referred to

SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 referred to

W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 considered

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 referred to

Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396 considered

VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59 discussed

Abebe v The Commonwealth of Australia (1999) 197 CLR 510 referred to

WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 referred to

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 referred to

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

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 referred to

NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 applied

NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 discussed

VTAG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V877 of 2003

WEINBERG J

16 APRIL 2004

MELBOURNE

THE COURT ORDERS THAT:

1.             The application be dismissed.

2.             The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a national of Tanzania, born in February 1979.  He arrived in Australia as a stowaway on 11 January 2003.  He is a member of the Civil United Front (“the CUF”), a party in opposition to the ruling Chama Cha Mapinduzi (“the CCM”) in Tanzania. 

2                     The applicant lodged an application for a Protection (Class XA) visa on 19 January 2003.  A delegate of the respondent Minister refused the application on 2 June 2003.  On 6 June 2003, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  On 23 August 2003, the Tribunal affirmed the delegate’s decision.  On 12 September 2003, the applicant applied for judicial review of the Tribunal’s decision, seeking relief under s 39B of the Judiciary Act 1903 (Cth).  An amended application was filed on 16 January 2004. 

background

3                     The applicant claimed, in a statutory declaration made on 4 February 2003, that he was entitled to protection under the Refugee Convention done at Geneva in 1951, as amended by the 1967 Protocol, because he had a well-founded fear of persecution by reason of his political opinion, and in particular his membership of the CUF.

4                     The applicant claimed that he had joined the CUF in May 1999 in order to redress the harassment he had suffered at the hands of CCM-backed officials while working as a street vendor in Dar Es-Salaam.  He claimed to have been involved in a number of activities with the CUF such as organising their meetings, disseminating pro-CUF information, participating in pro-CUF and anti-CCM demonstrations in Dar Es-Salaam from February 2000 during the local elections, and working as a scrutineer at a local election.

5                     Of particular note are the demonstrations that the applicant claimed to have attended in Dar Es-Salaam.  He said that, in about January 2000, he attended a large demonstration in connection with the CUF’s demand for an independent electoral commission.  He said that the police broke up the demonstration and several people were beaten.  He, however, had been able get away.  Police were sent to several subsequent demonstrations at which CUF supporters protested against the result of a local election.  At one such demonstration, in March 2000, police beat up approximately twenty demonstrators, including the applicant.  The applicant told the Tribunal that he was taken from that demonstration to a police station from which he managed to escape.

6                     Following this encounter, the applicant “went underground” to avoid being caught and abused by the authorities.  In April 2000, the applicant fled to Malawi and, in July 2000, to Mozambique.  He was deported to Tanzania in August 2000.  He chose the city of Arusha as his new home.  He did not return to Dar Es-Salaam because he was afraid that he would be identified there as a CUF supporter and imprisoned by the authorities that were sympathetic to the CCM. 

7                     In Arusha, the applicant participated in at least two demonstrations held in protest against foreign mining companies in relation to the miners’ conditions, the deaths of certain miners, and the companies’ purchase of land from the CMM.  Both the CUF and another opposition party, the TLP, were involved in these demonstrations.

8                     The applicant claimed that on account of his participation in CUF activities, such as scrutineering elections and attending demonstrations, he feared persecution at the hands of the CCM and its supporters.  These included the police and the mining companies.  He fled Tanzania without a passport, going first to Zambia and then to Zimbabwe, and entered South Africa where he boarded a ship which he thought was bound for Norway.  A month after leaving South Africa, the applicant arrived in Australia.

9                     The applicant said that if he were forced to return to Tanzania, he would most likely face a fine or a term of imprisonment on account of having left that country without a passport.  However, such punishment would be exacerbated by the authorities’ inevitable discovery of his past involvement with the CUF.  He claimed that he would be imprisoned and either tortured, or left to languish indefinitely.  Neither he nor his family had the money to pay a bribe to get him out of prison.

10                  On 20 February 2003, the Minister’s delegate interviewed the applicant.  At that interview, the applicant told the delegate that he had been arrested in March 2000, imprisoned for two weeks, and released upon payment of a bribe. 

11                  As indicated earlier, the delegate made his decision on 2 June 2003.  On 6 June 2003, the applicant applied to the Tribunal for review of the delegate’s decision. 

12                  On 10 July 2003, the applicant filed a further statutory declaration in which he claimed that he would be imprisoned for a particularly long time because of the combination of his illegal departure and his political history.  He also said that low-level supporters of the CUF, like himself, were frequently targeted as a warning to others.  The applicant said that the CUF-CCM conflict existed throughout Tanzania and that therefore, he could not relocate within that country. 

proceedings before tribunal

13                  At the hearing before the Tribunal on 17 July 2003, the applicant said that he had attended three “small” demonstrations and “one big one” in around January 2000.  The Tribunal, in its reasons for decision, recorded the applicant’s account of the demonstrations:

“…the small ones concerned the election he [the applicant] was involved with and not a lot happened at them.  He said that the big demonstration was in connection with a CUF demand for an independent Electoral Commission and was not related to the local election.  This was held in 2000, he thought about four months before he left the country, in a big stadium in Dar es Salaam.  The applicant said that CUF leaders wanted people to go to the President’s residence and that the demonstration was broken up but a lot of people were beaten.  The applicant was able to get away.  Then he said that there were demonstrations about the result of the local election because people thought that CCM had stolen victory.  The applicant said that the police were brought into these by CCM and on one occasions at one of these small demonstrations twenty people were beaten by the police, including the applicant who was taken to the police station from where he managed to escape.  He said that this was the only time he had been taken into custody.”

14                  The Tribunal then set out the country information upon which it ultimately relied.  That country information indicated that following elections held in 29 October 2000, in which the CCM won the National Presidency and a majority in the National Assembly, there had been considerable unrest and opposition.  The CUF boycotted the Parliament and organised demonstrations.  In January 2001, there were reports of clashes between CUF members and police around Dar Es-Salaam, and prominent CUF members were detained for organising protests.  By 2002, reports indicated that there had been a considerable reduction in tensions, and the Commission for Human Rights and Good Governance had commenced its work.  News reports from 2003 indicated that the CUF remained a vocal and active political force in Tanzania.  Peaceful elections for the Zanzibar Assembly and National Parliament were held in May 2003 with the CUF winning most vacancies.

15                  The Tribunal accepted that the applicant was Tanzanian, that he had left Tanzania in April 2000, and that he had returned in August 2000 to live in Arusha.  It noted his claim that he had actively supported the CUF by volunteering as a scrutineer at a local election in February 2000, attending “many CUF demonstrations in Dar es Salaam”, wearing a CUF t-shirt and carrying CUF placards.  It further noted the applicant’s claim that he “organised meetings and educated people about the party’s policies”.  The Tribunal member appears to have accepted these claims.  She stated:

“I accept that the applicant believes that CUF is the best party to govern in Tanzania and that he may have supported it when he lived there in the ways he has claimed.”  (emphasis added)

16                  The Tribunal next noted that the applicant claimed that people who held CUF membership cards risked being beaten, and imprisoned for a long time.  It also noted his claim that people who opposed the CCM were imprisoned or killed, or mistreated badly by police.  The Tribunal concluded, however, that CUF supporters were not treated in the way that the applicant had claimed.

17                  The Tribunal then dealt with the applicant’s claim to have been arrested in March 2000, and noted the disconformity between the accounts given to the delegate and to the Tribunal.  The Tribunal member then said:

“I do not believe that he has been truthful about having been detained in Dar es Salaam in 2000 because of reasons political and I do not accept that he was.”  (emphasis added)

The Tribunal also did not accept that the applicant had been persecuted because of his political opinion before leaving the country in April 2000.

18                  In relation to the applicant’s time in Arusha between August 2000 and July 2002, the Tribunal did not accept that he was in hiding when he lived there.  It considered that the applicant’s activities there were not material to what might happen to him upon his return to Tanzania.

19                  The Tribunal then considered the implications of the applicant’s support for the CUF.  The Tribunal member said:

“My assessment of the information I have found indicates that CUF is a major participant in politics in Tanzania and I have found nothing to indicate that CUF supporters are mistreated because of their political opinion.”

The Tribunal noted that there had been various untoward incidents in the past which had been contained or resolved.

20                  Against this background, the Tribunal considered the prospect of the applicant coming to harm if he participated CUF activities (such as taking part in political protests and demonstrations, wearing CUF t-shirts, carrying CUF placards, and attending party meetings) if he were returned to Tanzania.  The Tribunal member said:

“I consider that the chance of him coming to serious harm in the course of such involvement to be remote given information about the limited incidence of serious harm directed to CUF people in the period since the episode in early 2001 which was in any event short-lived and focused on Zanzibar where the applicant has not been.”  (emphasis added)

the applicant’s contentions

21                  Mr Cordiner, who appeared pro bono on behalf of the applicant, referred to various passages from a report issued by the United States Department of State, titled, “Tanzania: Country Reports on Human Rights Practices – 2002”, dated 31 March 2003 (“the Report”).  The Tribunal relied upon this document, amongst others, in coming to its decision.  Mr Cordiner contended that the Tribunal should have had regard to the following passages from the Report:

“The Government’s human rights record remained poor; while there were improvements in a few areas, serious problems remained…  Police were more disciplined during the year [2002]; however, members of the police and security forces committed unlawful killings.

…

During the year [2002], police used excessive force to disperse demonstrations, which resulted in the deaths of demonstrators…

No action was taken during the year [2002] against police officers that shot and killed one CUF member and injured another in Stonetown, Zanzibar, in January 2001.”

22                  Mr Cordiner contended that, in contrast to the Tribunal’s conclusion that much of the disturbance had occurred in Zanzibar, the Report indicated that violence was not confined to that region.  He then turned to the following passage from the Report:

“In previous years, security forces regularly used beatings, tear gas, and other forms of physical abuse to disperse large gatherings.  During the year, police forces were more disciplined in their handling of demonstrations; however, in February [2002] they used tear gas to disperse one large gathering, which resulted in deaths and injuries.

…

During the year, persons were arrested following the forcible dispersion of demonstrations.

…

Opposition parties at times were unable to hold rallies.  CUF meetings were banned periodically.  On October 25 [2002], the CHADEMA Member of Parliament was arrested for holding a mass rally for which the police had denied a permit.  The police claimed they had banned the open-air rally to prevent the spread of meningitis.  Security officials interfered with citizens’ rights to assemble peacefully on a few occasions.

…

No action was taken against the police who used excessive force to disperse the following rallies and demonstrations in Zanzibar in 2000…”

23                  Mr Cordiner then turned to the first ground raised in support of the application for review, namely whether the Tribunal had failed to take into account relevant considerations.  He submitted that, by her finding that the applicant “may have supported [the CUF] in the ways he has claimed”, the Tribunal member appeared to have accepted that the applicant did attend the demonstrations as he had asserted.  Mr Cordiner also noted the Tribunal member’s conclusion that the applicant had not “been truthful about having been detained in Dar es Salaam in 2000 because of reasons political” and her statement that “I do not accept that he was.”  Mr Cordiner submitted that, by that statement, the Tribunal member meant that she did not accept that the applicant had been detained at all.  Critically, Mr Cordiner contended, whilst the Tribunal had accepted that the applicant attended the demonstration, and had not accepted that the applicant had been detained, it had not addressed the issue of whether he had been beaten at any demonstration.  This, he submitted, was a relevant consideration that the Tribunal had failed to take into account when asking itself whether the applicant had a well-founded fear of persecution.

24                  In support of this submission, Mr Cordiner relied upon Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at [5] per Gleeson J and [75] per McHugh, Gummow and Hayne JJ.  He acknowledged that the Tribunal was not required to refer to every piece of evidence and every contention put forward by an applicant in written submissions.  It may be that some evidence was irrelevant to the criteria and that some contentions were misconceived.  However, where an issue was raised by the evidence and contentions advanced by an applicant and that issue, if resolved one way, would be relevant to the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47].

25                  Mr Cordiner further relied upon the decision in SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 in which a Full Court of this Court said at [29]:

“However these matters may be, even on the narrow view of the effect of S157 proposed by counsel for the appellant, it cannot be other than an important matter, going to the core of the Tribunal’s jurisdiction, to overlook crucial material amounting, as Allsop J put it in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259, to an integer of the claim.  In that case, Allsop J, with whom Spender J agreed, said that “To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.  His Honour then made clear that this includes a failure to examine all the integers of any claim, saying “The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Immigration and Multicultural Affairs v Peko-Wallsend (1986) 162 CLR 24 … and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323” (emphasis added).  Merkel J agreed with Allsop J in the result and was not at odds with Allsop J’s approach.  Another Full Court (Black CJ, Wilcox and Moore JJ) agreed with this approach in W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at 78-81 [31]-[38].”

26                  Mr Cordiner submitted that an “integer” should be regarded as a “confined piece, element of the claim, which would give rise to a well-founded fear of persecution for political reasons in this case”.  He contended that an “integer” differed from “an important piece of evidence”, although the distinction that he drew appeared to be largely one of degree.  He submitted a significant difference in the level of violence allegedly directed against the applicant could amount to a distinctive claim or integer, rather than merely an aspect of the evidence relied upon.  Accordingly, he submitted that the beatings administered at the large demonstration in January 2000 (at which a number of protesters were beaten) and the smaller demonstration in March 2000 (at which the applicant, amongst others, was beaten) rose to the level of an “integer”.

27                  Mr Cordiner then turned to the applicant’s second ground of review.  He submitted that the Tribunal had misapplied the law in substituting an incorrect test for determining whether the applicant held a well-founded fear of persecution.  It had impermissibly equated “remote” chance of such persecution with:

“the limited incidence of serious harm directed to CUF people…which was in any event short-lived and focused on Zanzibar where the applicant has not been”.  (emphasis added)

Mr Cordiner submitted that by using the expression “limited incidence”, the Tribunal had confused the task that it was required to carry out, and had misconceived the test for “a well-founded fear of persecution”.  Therefore, he submitted, the Tribunal had wrongly concluded that the applicant’s fear was not well founded.

28                  In support of this contention, Mr Cordiner relied upon the decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  Mason CJ said at 389:

“…a fear of persecution is ‘well-founded’ if there is a real chance that the refugee will be persecuted if he returns to his country of nationality…  I prefer the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring…  If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.”

29                  McHugh J said at 429:

“…an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted.  Obviously, a far-fetched possibility of persecution must be excluded.  But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as ‘well-founded’ for the purpose of the Convention and Protocol.”

30                  Mr Cordiner also contended that a single incident of harm inflicted for a Convention reason could give rise to a well-founded fear of persecution, and it need not be inflicted regularly or in a coordinated pattern: see Labara v Minister for Immigration and Multicultural Affairs [2002] FCAFC 145 at [19] (“Labara”).

31                  Mr Cordiner contended that, in concluding that the there were only a remote chance that the applicant would come to harm if he were involved in CUF activities, the Tribunal had misapplied the law.  By equating the word “remote” with “limited incidence” and “short-lived” incidence, the Tribunal had misconstrued the “real chance” test.  Serious harm that is short-lived and of limited incidence can, in accordance with Labara, give rise to a well-founded fear of persecution.  The correct question is whether that chance of harm gives rise to a well-founded fear, not whether it is short-lived or of limited incidence.  Mr Cordiner cited Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”) in which Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ(Kirby J agreeing) said at 572:

“…to use the real chance test as a substitute for the Convention term ‘well-founded fear’ is to invite error…”

32                  Mr Cordiner submitted that in the present case the Tribunal had not only substituted the real chance test for the Convention term “well-founded fear”, but had substituted an even less appropriate test for that requirement.  In doing so, the Tribunal had fallen into jurisdictional error.

33                  Mr Cordiner then turned to the third ground of review.  He submitted that the Tribunal’s finding that there was “nothing to indicate that CUF supporters are mistreated because of their political opinion” was “erroneous, illogical, unreasonable and clearly not supported by, or was inconsistent with” the evidence that it had had before it.  This was because, following its finding that CUF supporters were not mistreated, the Tribunal had listed a range of clear instances of persecution of CUF members.  As a result of the error, illogicality and unreasonableness, he contended, the Tribunal had erred in law.

34                  In support of this contention, Mr Cordiner relied upon the principle laid down in Yusuf that a Tribunal exceeds authority or power where it makes an error of law which causes it, “at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion”.  He also relied upon the following passage from Minister for Immigration, Local Government & Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 (“Pashmforoosh”) at 80:

“Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power…  The taking into account of a fact found unreasonably or the failure to take into account a fact that a reasonable decision-maker would have found and taken into account provides a ground of review under ss 5(1)(e) and 5(2)(a) and (b) of the ADJR Act.”

35                  Mr Cordiner also cited SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 and W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 (“W396/01”).  In the latter case, the Full Court said at [33]:

“An apparent illogicality in the tribunal’s reasoning is not in itself a reviewable error.  However, to the extent that it demonstrates a failure by the tribunal to ask itself the right question or a failure to consider a relevant consideration that it was bound to consider, illogicality may manifest reviewable error: see Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411… especially at [25].”

36                  Finally, Mr Cordiner addressed the issue of whether s 474 of the Migration Act 1958 (Cth) (“the Act”), being a privative clause, prevented the applicant from bringing his application for review to this Court.  Mr Cordiner referred to the decision in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 (“Plaintiff S157/2002”), in which the High Court held that s 474 did not protect administrative decisions which involved jurisdictional error from judicial review.  He submitted that the applicant in the present case had pointed to the kinds of jurisdictional error contemplated in Plaintiff S157/2002, and that accordingly, s 474 did not operate to prevent him from pursuing his application for review.

the respondent’s contentions

37                  Counsel for the respondent, Ms Riley, commenced her submissions by drawing a distinction between “integers of the claim” and “matters of evidence”.  She referred to the decision of a Full Court in Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396 (“Paul”), in which Allsop J (with whom Heerey J agreed) said at [79]:

“Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration and Multicultural Affairs v X [2001] FCA 858; Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736; Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911; Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 and Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864) they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.  It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with.  In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed.  However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim.”

38                  Ms Riley conceded that the Tribunal in the present case had not made any express finding as to whether the applicant had been beaten at a demonstration.  She referred, however, to the country information before the Tribunal, to the effect that circumstances in Tanzania had changed significantly.  She submitted that where there had been a change of circumstances of that kind, it was unnecessary for the Tribunal to make detailed findings about what had occurred in the past.  Accordingly, the Tribunal had not been required to come to any conclusion as to whether the applicant had been beaten, as he claimed, at a demonstration in 2000.

39                  Ms Riley turned to the following passage from the joint judgment in Guo at 575:

“In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.”

She said that though this might be a principle of general application, there would be instances where the past would not be a clear indicator of what was likely to occur in the future.  The High Court itself had indicated as much by adopting the words “in many…cases”. 

40                  Ms Riley then turned to the decision in VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59 (“VAJ”).  In that case, a Full Court of this Court considered the following statement of the Tribunal:

“As the situation in the former Yugoslavia has changed dramatically since the applicant left there initially in 1971, the Tribunal is not able to conclude that anything that befell the applicant before this departure indicates he faces a real chance of persecution should he now return.”

41                  The Full Court said at [15]-[17]:

“We accept that, in the generality of cases, it will be necessary for the Tribunal to examine claims of past persecution in order to enable it to assess the possibility of future persecution, if the particular applicant is returned to his or her country of nationality.  But there may be exceptional cases.  This was recognised in a passage in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited by Mr Gibson himself.  At 574-575, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said:

“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable.  Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.  The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.  In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty.  In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.  In between these extremes, there are varying degrees of probability as to whether an event will or will not occur.  But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”

It will be noted that the past is to be examined, not for its own sake but as a guide to the future.  Where it is clear that, in the country of nationality, there has been a dramatic change of conditions, it may be rational to conclude that the past cannot afford reliable guidance about the future and it is preferable to rely upon such information as is available about current conditions.

This was the Tribunal’s approach in the present case.  Nobody could dispute the Tribunal’s statement that “the situation in former Yugoslavia has changed dramatically” since 1971.  It was therefore not irrational to conclude that nothing was to be gained by considering in detail what had happened to the appellant before that date.  This is especially the case because anything that had occurred had occurred in what is now Croatia, whereas the relevant country for Convention purposes is what is now the Republic of Yugoslavia i.e. Serbia and Montenegro.”

42                  Ms Riley acknowledged that the change in regime considered by the Tribunal in VAJ had been more dramatic than in the present case.  However, she submitted that in the present case, the applicant had focussed upon police violence, and that there was “plenty of material” to show that there had been a significant reduction in such violence.  In fact, she contended, the police violence to which the applicant pointed had been an “aberration”.  If the applicant now chose to engage in the sort of pro-CUF activities in which he had once participated, he “would not face the risks that a person participating in that demonstration in January 2001 did” and that “the risk of him experiencing serious harm” was “remote”.  That, she submitted, was a question of “fact and degree”, and open to the Tribunal to determine.  Accordingly, the Tribunal had correctly applied the test in Guo.

43                  Ms Riley then turned to WAEE, upon which the applicant had earlier relied, and noted the following comment of the Full Court at [46]-[47]:

“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived.  Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.  The Tribunal is not a court.  It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications.  Each of the applications it decides is, of course, of great importance.  Some of its decisions may literally be life and death decisions for the applicant.  Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’.  Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”  (emphasis added)

44                  Ms Riley contended that in the present case, the Court should not draw “the inference that the Tribunal [had] failed to consider an issue” because it had positively identified the issue.  Moreover, she submitted, it was “unnecessary to make a finding” on the issue of beatings at demonstrations because it was “subsumed in findings of greater generality” relating to serious harm.  She contended that the beating at the March 2000 demonstration was not “dispositive” because there had been change in circumstances in Tanzania.  She referred to and relied upon Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [192] and [195], and WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399.

45                  Ms Riley contended that the applicant was required to demonstrate that the Tribunal’s reasons were flawed by reviewable error.  In support of this contention, she cited Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at [41], Yusuf at [84], W396/01 at [33].  She further argued that the applicant not only had to show that the Tribunal had not asked itself the right question, but also identify what that question should have been.  She said that the Tribunal had asked itself the correct question, namely what would happen to the applicant if he participated in a demonstration in the future.  She disputed the applicant’s submission that had the Tribunal made a finding in relation to a past beating, the outcome of its reasoning would have differed.  She submitted that in light of the changed circumstances in Tanzania, the Tribunal would have come to the same conclusion.

46                  Ms Riley next submitted that the decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 should be applied.  In that case, delegates of the Minister had indicated in their statements of reasons for rejecting applications for refugee status that they regarded some matters as “speculative”.  They stated that they gave greater weight to certain matters than to others and no weight at all to some matters.  The High Court held that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons were expressed.

47                  Ms Riley argued that the applicant’s reliance upon Pashmforoosh was “dangerous” in light of the fact that it was decided in 1989 under the Administrative Decisions (Judicial Review) Act 1977 (Cth).  In relation to the appropriate weighting of evidence, she referred to the High Court’s decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (“Eshetu”) at [44], [55]-[56].  She submitted that that case was authority for the proposition that it was for the Tribunal to decide the merits of the case and consider what weight to attribute to the evidence before it.  She also referred to [146] of that judgment in which Gummow J said that there was a stricter view as to what must be shown in a case where the applicant is seeking relief under s 75(v) of the Constitution.

48                  In relation to the privative clause argument, Ms Riley referred to the passages in Plaintiff S157/2002 in which the High Court had noted that s 474 may operate so that “some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of the decision”: see [69], [70], [77] and [78].  In other words, the privative clause would not protect all decisions that involved jurisdictional error, but only those that gave rise to “manifest error of jurisdiction”. 

consideration

49                  The first ground which must be considered is whether the Tribunal fell into jurisdictional error by failing to consider that aspect of the applicant’s claim that arose from his having attended the various demonstrations that he described, and been beaten at one of them.  He relied upon that claim to support his contention that police generally targeted CUF supporters, and that this amounted to “persecution”. 

50                  It will be recalled that the applicant claimed that he attended pro-CUF demonstrations in January and in March 2000.  He told the Tribunal that at the first of those demonstrations, police beat up a number of protesters.  He claimed that, at the second, he together with others, had been assaulted, arrested and detained. 

51                  It is likely that, by its statement, “I accept that the applicant …may have supported [the CUF] …in the ways he has claimed” the Tribunal accepted the applicant’s claim that he had attended pro-CUF demonstrations.  However, the Tribunal plainly did not accept his claim that he had been arrested and detained following the March 2000 demonstration.  It made no specific finding as to whether he had been assaulted at that demonstration.  Mr Cordiner submitted that by failing to make such a finding, the Tribunal did not properly consider the question whether the applicant had a well-founded fear of persecution.  Accordingly, he contended, it fell into jurisdictional error. 

52                  The issue to be determined is whether the applicant’s claim that he had been assaulted was an “integer” of his case, as contemplated by Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259, or merely a matter of evidence.

53                  The Tribunal clearly considered whether the applicant, upon his return to Tanzania, might suffer serious harm were he to engage in the kind of pro-CUF activities in which he had previously been involved.  It considered the prospect of that happening to be remote, given the “limited incidence” since early 2001 of serious harm directed at CUF supporters.  It was open to the Tribunal to make that finding, in light of the country information that was before it.  With that finding in mind, in my view, the issue whether the applicant had been assaulted at a demonstration in March 2000 was neither central to, nor an “integer” of, whether he had a well-founded fear of persecution at the time of the Tribunal’s decision.  See generally Paul at [79].

54                  I turn now to the applicant’s second ground, namely that the Tribunal applied an incorrect test of “limited incidence” when determining whether the applicant had a well-founded fear of persecution.  It is true, as Mr Cordiner pointed out during his submissions, that serious harm that is short-lived and of limited incidence can give rise to a well-founded fear of persecution: see, for example, Labara.  It does not follow, however, that a Tribunal that uses language of this type, and concludes that there was no well-founded fear of persecution, has necessarily fallen into jurisdictional error. 

55                  Whilst in the present case the Tribunal did not adopt the expression “real chance”, or any equivalent language, I am satisfied that it correctly addressed the question whether the applicant had a well-founded fear of persecution.  To the extent that there is any difficulty with the precise formulation that the Tribunal used, the principles laid down by the High Court in Wu Shan Liang should be applied.  The Tribunal gave careful consideration to the country information regarding the likelihood that CUF supporters would be subjected to serious harm.  It concluded, on the basis of that material, that the prospects of any such harm befalling the applicant were remote.  That finding was open to the Tribunal.

56                  I turn now to the applicant’s third ground, namely that the Tribunal’s finding that there was nothing to indicate that CUF supporters were mistreated by reason of their political opinion was erroneous, illogical, unreasonable, and unsupported by evidence.

57                  A plain reading of the Tribunal’s reasons reveals its consideration of past violence in Tanzania.  The Tribunal noted the level of such violence had subsided.  One factor that it had taken into account, for example, was the agreement reached between the CUF and CCM on various reforms.  The Tribunal considered each of the applicant’s claims against the country information before it.  There were aspects of that material that supported the applicant’s case.  However, there were also aspects that indicated that the situation had stabilised, and that the risk of serious harm was remote.  The weight to be accorded to the country information was essentially a matter for the Tribunal, and not for this Court.  I am not persuaded that the Tribunal erred in law in making its finding, still less that it did so in a manner that gave rise to jurisdictional error.

58                  Even if the Tribunal’s reasons contained conclusions that were illogical, that would not, of itself, amount to jurisdictional error.  In NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 (“NACB”), a Full Court of this Court held that “illogical reasoning does not of itself constitute an error of law or jurisdictional error”.  See also NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 at [25], and W396/01 at [33]. 

59                  The point was further considered in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (“Applicant S20/2002”) at 71, where McHugh and Gummow JJ, with whom Callinan J relevantly agreed, concluded that the decision of the Tribunal under challenge in that case was not shown to be, in the sense propounded by the appellant, illogical, irrational, or lacking a basis in findings or inferences of facts supported on logical grounds.  Their Honours discussed “Wednesbury unreasonableness”, and appeared to leave open the possibility that, in an appropriate case, an exercise of power could be so unreasonable that it might result in a decision “not authorised” by the Act.  Gleeson CJ appeared to take a somewhat different approach.  His Honour specifically referred to Eshetu in which both he and McHugh J had said that to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. 

60                  Applicant S20/2002 contains several passages that are dicta, and that are by no means easy to apply.  However, I see nothing in that judgment that is at odds with NACB, which is binding upon me.  Accordingly, Applicant S20/2002 does not assist the applicant in his primary contention that illogical reasoning, even assuming that it can be demonstrated, of itself amounts to jurisdictional error.

61                  In light of these reasons, the application must be dismissed.  Strictly speaking, it is unnecessary for me to express any opinion regarding the effect of Plaintiff S157/2002 upon s 474.  There has been considerable debate about that issue in this Court.  I should say, however, that in my view, Plaintiff S157/2002 establishes that once jurisdictional error has been established, s 474 cannot be invoked to validate the “purported”, but invalid, decision.  That leaves s 474 with little, if any, operative effect.  In accordance with the normal rule, the applicant must pay the respondent’s cost.

Associate:

Dated:              16 April 2004