WAAI v Minister for Immigration & Multicultural Affairs [2002] FCAFC 65 WAAI v Minister for Immigration & Multicultural Affairs [2002] FCA 293 NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only. FEDERAL COURT OF AUSTRALIA WAAI v Minister for Immigration & Multicultural Affairs [2002] FCA 293 WAAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W468 of 2001 BLACK CJ, WILCOX AND MOORE JJ 6 MARCH 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 468 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WAAI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BLACK CJ, WILCOX and MOORE JJ DATE OF ORDER: 6 MARCH 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 468 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WAAI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BLACK CJ, WILCOX and MOORE JJ DATE: 6 MARCH 2002 PLACE: PERTH REASONS FOR JUDGMENT BLACK CJ: 1 I also would dismiss the appeal. I agree generally with the reasons given by Wilcox J. The order of the Court accordingly is that the appeal be dismissed with costs. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black. Associate: Dated: 13 March 2002 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 468 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WAAI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BLACK CJ, WILCOX and MOORE JJ DATE: 6 MARCH 2002 PLACE: PERTH REASONS FOR JUDGMENT WILCOX J: 2 This is an appeal from an order of a judge of the court, French J, dismissing an application for review of a decision of the Refugee Review Tribunal refusing to issue a protection visa to the appellant, "WAAI". 3 The grounds of appeal, as amended at the commencement of the hearing, are as follows: "2. His Honour erred in law in finding that the approach of the Refugee Review Tribunal, the tribunal, in assessing credibility did not disclose an error of law or an excess of jurisdiction. Particulars: (a) the tribunal erred in law or committed a jurisdictional error in failing to take a liberal approach to assessing the credibility of the appellant; (b) the tribunal erred in law or committed a jurisdictional error in failing to have regard to the recording of the interview between the appellant and the delegate. 3. His Honour should have found that the tribunal erred in law or committed a jurisdictional error in failing to give independent weight to the documentary evidence (the summons) provided by the appellant. 4. His Honour erred in law in finding that the tribunal did not fail to apply the correct test to determine whether or not the appellant had a well-founded fear of persecution by reason of his actual or imputed political opinion." 4 Although there are four separate grounds - treating the particulars of ground 2 as raising separate issues - they raise only two substantial points. Grounds 2(a) and 4 may be considered together, as may grounds 2(b) and 3. 5 Grounds 2(a) and 4 are both concerned with the approach to be taken by the Tribunal in considering evidence given by applicants for protection visas. The contention of counsel for the appellant is that the Tribunal is required to take a "liberal" approach to such evidence and the Tribunal failed to do that in the present case. This was said to be an error of law and reviewable under section 476(1)(e) of the Migration Act 1958. 6 The word "liberal" is used in some of the authorities, but it is important to be clear as to what is meant. Typically, applicants for protection visas labour under significant disabilities in presenting their claims. By definition they are foreigners. Most often they do not have English as a first language, and sometimes no English whatever. Many applicants come from countries with cultures unlike the Australian culture and laws also quite different. Applicants have to tell their stories in considerable detail to Australian officials and are asked to recount the history of their claimed persecution and their likely fears if returned to their home country. 7 In this context, the word "liberal" has been used by judges in order to make the point that persons who have to assess such claims, such as delegates of the Minister and members of the Tribunal, ought to be cognisant of the difficulties which applicants face and ought to be slow to disbelieve claims simply because the evidence is given in a halting, confused or inarticulate way. In other words, the fact-finder ought to be careful to ensure that he or she has fully understood the cultural background of the applicant before rejecting the claim, and in particular before making adverse findings about credibility. That said, it remains the function of delegates and members of the Tribunal to form judgments about the truthfulness of the assertions made to them in support of claims. The word "liberal" should not be regarded as an invitation to fact-finders to fudge or avoid that responsibility. 8 In the present case I do not think it is legitimate to criticise the Tribunal member for having failed to understand the claims made by the applicant. The materials before us show that the Tribunal hearing occupied a considerable time and that the member took pains to understand the detail of what was put before him. There is no indication that the appellant was unable to explain what he meant by elements in his claims or to explain the basis of his claims or the facts surrounding his case. I do not think there is anything in grounds 2(a) or 4. 9 The other two grounds raise an issue concerning what were referred to in the argument as "summonses". The word "summons" is somewhat curious, given the nature of the documents. The appeal papers contain what are apparently photocopies of two documents in Arabic. We have the benefit of translations of those documents. It appears from the translations that they bear the respective dates 9 August 2000 and 16 August 2000. The translations show the documents purport to have been issued by the Arab Republic of Syria, Ministry of the Interior, Political Security Branch. The documents bear the title "Permit for Inquirers". They appear, indeed, to be permits enabling the inquirer, who bears the appellant's correct name, to have a meeting with a named officer of the Political Security Branch. 10 Whatever the correct description of the documents, the question that arises is whether the Tribunal misunderstood the evidence or unwarrantedly used the appellant's statements about these documents in assessing his credibility. There is no doubt that the Tribunal member thought the appellant had given inconsistent evidence about these documents and used that finding to the appellant's disadvantage in assessing credibility. 11 The circumstances in which the documents came into existence appear to be as follows. The appellant claimed he was arrested and detained in Syria, of which he was a long‑term resident, from 14 November 1999 until 17 June 2000. He said that, some two weeks after his release, he was summonsed for interrogation, presumably at the Political Security Branch of the Ministry of the Interior. He attended that interrogation and was allowed to go home. 12 Approximately three weeks later he received a further summons. As I understand the evidence, he did not attend a second time. Apparently, he was not at home when the document arrived. 13 The understanding of the delegate was that the two documents to which I have referred are the documents by which the appellant was summonsed on these two occasions. The delegate pointed out that the documents both bore dates in August whereas, according to the chronology given by the appellant, the first interrogation would have been at the end of June or early July and the second "summons" would have been received late in July. 14 I should say immediately that it seems to me undesirable for fact‑finders in this area to put too much weight upon minor discrepancies in dates. Most people do not remember dates accurately, unless perhaps the event under consideration is tied to something momentous in their life. I think it is a common experience of all of us, when asked how long ago something happened, to find our estimate is seriously amiss. 15 Accordingly, for the delegate to be greatly concerned about whether these documents were false because they were dated in August rather than late June or mid‑July, seems to me to be a doubtful step to take. The appellant could easily have underestimated the time between the relevant events. However, this is not the critical point about the documents. What appears quite clearly is that there was discussion about these documents at the early stages of the investigation of the appellant's claim and there was no suggestion then of any later "summons" having been received. However, when the Tribunal Member questioned the appellant about the documents that are in evidence, he claimed they are not the documents under which he attended the first interview or was summoned to attend the second interview; but rather other and later documents that were left by somebody with his wife after he had ceased to live at home. 16 It was under these circumstances that the Tribunal made the statement that the appellant "changed his story". It seems to me it was open to the Tribunal to form that view. I emphasise that I do not, myself, express any view about the factual situation. The task of finding the facts is for the Tribunal, not for the Court. It is sufficient to say that I cannot see that this issue gives rise to any error of law or failure to exercise jurisdiction pursuant to the Act, as was contended by counsel for the appellant. 17 In my view, no ground, within the jurisdiction of this Court, is made out for interference with the decision of the Tribunal. It is my opinion that the appeal must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 13 March 2002 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 468 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WAAI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BLACK CJ, WILCOX and MOORE JJ DATE: 6 MARCH 2002 PLACE: PERTH REASONS FOR JUDGMENT MOORE J: 18 I generally agree with the reasons given by Wilcox J and the order he proposes. I would wish to add some brief observations of my own. I am prepared to accept that the documents referred to by his Honour are, as the Tribunal effectively characterised them, summonses to attend for interrogation. In my opinion, the Tribunal may well have overstated or even misstated the position taken by the appellant in the account he gave the delegate of the relevance and significance of the summonses dated 9 and 16 August 2000. 19 In doing so the Tribunal may have too readily reached adverse conclusions about the credibility of the appellant. However, that arose in the process of fact-finding undertaken by the Tribunal and that matter does not, in my opinion, attract a ground of judicial review. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore . Associate: Dated: 13 March 2002 Counsel for the Applicant: Mr P Sheiner Counsel for the Respondent: Mr A A Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 March 2002