WADE of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 214

FEDERAL COURT OF AUSTRALIA

WADE of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 214

WADE of 2001 v Minister for Immigration & Multicultural Affairs W 580 of 2001 BRANSON, GOLDBERG & ALLSOP JJ 15 JULY 2002 SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 580 of 2001

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN: WADE OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: BRANSON, GOLDBERG & ALLSOP JJ

DATE OF ORDER: 15 JULY 2002

WHERE MADE: SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT: 1. the appeal be dismissed; and 2. the appellant pay the respondent's costs. 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 580 of 2001

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN: WADE OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: BRANSON, GOLDBERG & ALLSOP JJ

DATE: 15 JULY 2002

PLACE: SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

The Court: 1 This is an appeal from orders of a Judge of the Court made on 18 December 2001 dismissing an application of the appellant (with costs) for review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 20 April 2001 which had affirmed the decision of a delegate of the respondent Minister not to grant a protection visa to the appellant. 2 The application before the primary judge was filed on 2 May 2001 and so came to be dealt with within the statutory framework (as to substantive law) in place prior to the amendments to the Migration Act 1958 (Cth) (the Act) which took effect on 2 October 2001. However, s 91X of the Act, inserted and amended by Acts numbered 131 and 157 of 2001, contains the following injunction directed to the Court in a proceeding (including an appeal) that relates to a person's application for a protection visa: The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person's name. 3 The intended reach of subs 91X(2) is far from clear. The word 'publish' may have various meanings, in particular in the context of the Court conducting its proceedings in public, subject to the operation of provisions such as s 50 of the Federal Court of Australia Act 1976 (Cth). 4 The primary judge anonymised the identity of the applicant not only by not using his name, but also by referring to his country of nationality as Z and his former paramilitary unit as X. Whether or not this is required by the terms of s 91X, given that the primary judge thought this to be an appropriate course, we shall do likewise. 5 During the appeal the appellant disclosed to the Court that he had a copy of the muster book of the detention centre containing names and photographs of detainees and their country of origin. Neither the fact that the appellant had the book nor the contents of the book was or were relevant to the resolution of the matter before us. However, in circumstances where the Parliament goes to the lengths of prohibiting the Court from publishing the names of all applicants who invoke the Court's jurisdiction (irrespective of confidentiality issues in any particular case) it seems wrong for the detention centre to be conducted in a way which apparently permits this kind of information to be available. 6 The Tribunal heard the matter on 15 and 22 November 2000 on which days the appellant gave oral evidence. The appellant called two witnesses in support of his claims. He provided written submissions dated 14 November 2000 from his adviser, which included as attachments a supplementary statement in Farsi dated 12 November 2000 and an unofficial English translation of that statement. There was also a statement dated 23 July 2000 before the Tribunal. After the hearing, the adviser furnished the Tribunal with a translated statement of the appellant dated 5 December 2000 and various other documents. The Tribunal also had before it the files of the Department which included a record of interview dated 30 June 2000, the appellant's protection visa application dated 24 July 2000, the statement of the appellant dated 23 July 2000 to which we have made reference and a taped record of interview with an officer of the Department which took place on 26 July 2000. 7 The Tribunal considered the claims of the appellant and the evidence over 45 pages. First, it carefully dealt with the contents of the record of interview dated 30 June 2000, his statement of 23 July 2000, the Departmental interview which took place on 26 July 2000, his supplementary statement of 12 November 2000 and the adviser's submissions dated 14 November 2000. 8 The appellant's claims for protection arise out of his having been, for a number of years, a member of X, a well known state-sanctioned internal security agency in country Z. The unit or agency X is reported in reliable publications as being an agency which has committed numerous serious human rights abuses in country Z. The appellant's claims were encapsulated in what was put to the Tribunal by the appellant's adviser (anonymised in the way I have referred to above): He has a genuine and well-founded fear of persecutory treatment by the [religious authorities of country Z] and/or [the] civil authorities in [the capital of country Z] for reasons of political opposition to the ruling fundamentalist clerical leadership, arising from: his refusal to obey orders as a member of a paramilitary unit; and assisting detainees to escape from the prison he was helping to guard. It was submitted to the Tribunal that these activities would be regarded as inimical to the theocratic regime and carry a sentence as severe as an extended term of imprisonment. The grounds for his claimed fear are stated to be: his private 'mutiny' at the student demonstration; having been disciplined he was awaiting a military court hearing, which could attract an extended term of imprisonment; his personal conversion, resulting in him helping prisoners to escape and becoming a deserter; departing the country illegally on a false passport; and applying for asylum in Australia, an act of vilification and of political criticism of the Islamic regime. 9 After thus summarising the claims of the appellant, the Tribunal dealt with the facts and the evidence, dealing, in particular, with matters identified by the appellant's adviser. The evidence given before the Tribunal on 15 and 22 November 2000 was discussed in detail by the Tribunal. The Tribunal referred to aspects of the appellant's evidence which the Tribunal had difficulty in accepting and aspects of inconsistencies in the various expositions of his circumstances. The Tribunal also discussed the evidence of the two witnesses called by the appellant. 10 During the course of the hearing the Tribunal discussed with the appellant's adviser the issue of the appellant's credibility. It referred to its difficulty in accepting important aspects of the appellant's claims and a perceived lack of candour in respect of some past actions. In this context there was discussion of the procedures for leaving country Z, about a suicide attempt that the appellant said he had undertaken (and which had not been mentioned on earlier occasions when the opportunity apparently arose to do so), the relevance of country information regarding airport security and other matters set out in the Tribunal's reasons. 11 As earlier indicated, after the hearing further material was submitted to the Tribunal. This included a further statement of 5 December 2000, unofficial translations of excerpts from articles in an Australian-Z newspaper published in Sydney in 1998, and a statement from an interpreter as to the difficulty faced in recalling contents of interviews. This latter matter went to the issue as to the appellant not disclosing his attempted suicide on an earlier occasion. He said that he disclosed it to an interpreter who, it was said, did not tell either his then adviser or any officer of the Department about it. 12 The Tribunal then considered the further submission of the adviser dated 19 December 2000 and a further statement of the appellant. 13 On 14 March 2001 the Tribunal wrote to the appellant and his adviser inviting comments on information before the Tribunal, in relation especially to the question of the disclosure of the suicide attempt. 14 The adviser responded by providing further submissions dated 27 March 2001. Some further communication took place between the adviser and the Tribunal. 15 The Tribunal then dealt with country information over eight pages. 16 In its findings and reasons the Tribunal comprehensively and exhaustively rejected the claims of the appellant as they had been put forward to it. It drew on its observations of him in giving his evidence and many perceived inconsistencies in the evidence to reject his credibility. After, properly, reminding itself of the difficulties faced by people in the position of the appellant and the caution required to be exercised in coming to views of the kind to which the Tribunal was about to refer, the Tribunal stated: … The Tribunal was satisfied that the Applicant was not candid about a number of key aspects of his claims. The Tribunal finds that it is unable to rely on the Applicant as a witness to the truth on several very important elements of his claims and is not satisfied that he can be believed on major aspects of his claims for the reasons set out under this credibility heading and elsewhere in this decision. 17 In that context the Tribunal then said the following: Treatment as a traitor and spy on return In view of the Tribunal's adverse findings above on the Applicant's credibility and that it is not satisfied on the key elements of his claims, the Tribunal is not convinced that the Applicant left [country Z] as a fugitive from the [unit X] nor from Revolutionary Court charges. The Tribunal is satisfied that the Applicant left [country Z] legally on a valid passport and without breaching [unit X's] rules. The Tribunal has no reliable evidence or reason to believe that the [country Z] authorities will suspect the Applicant may have disclosed information about the [unit X] to Australian authorities. The Tribunal finds that the Applicant will have no basis to fear return to [country Z] either as a suspected traitor or spy. Country information indicates that [country Z] asylum seekers who have exhausted all legal avenues can return even if they do not hold [country Z] documents and if they cannot prove that they left [country Z] legally in the past, a small fine is imposed. On the evidence before the Tribunal, it is not satisfied that the Applicant would, in his particular circumstances on return to [country Z], face harm amounting to persecution. [emphasis added] The Tribunal rejects the Applicant's claim to have undergone a sudden change of heart and mind in the middle of an attack on demonstrating students in [capital of country Z] in July 1999 and is not satisfied that he is entitled to protection for reasons of political opposition to the clerical leadership in [country Z] or the [country Z] Government. The Tribunal is not satisfied it has been told the real reason for the Applicant's departure from [country Z]. It is possible that the Applicant chose to leave [country Z] for any number of reasons unrelated to his protection claims. A range of possibilities clearly exist but the Tribunal does not find it necessary or appropriate to explore them. Having given this application for protection the most serious and close consideration, the Tribunal is not satisfied that the Applicant has a fear of persecution for a Convention reason nor is there a real chance of him being persecuted within the meaning of the Convention. Accordingly, the Tribunal is not satisfied that the Applicant has a well founded fear of persecution. CONCLUSION Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore, the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. 18 Though the Tribunal used the word 'convinced' in this passage, we are mindful of the injunction of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-72 and, in the light of the otherwise fully and carefully expressed reasons, we consider that the use of that word does not betray any misunderstanding by the Tribunal of its primary jurisdictional task under subs 36(2) of the Act. 19 No error in the Tribunal's reasoning process was evident to the primary judge. Notwithstanding his Honour's recognition of the limits of his task in relation to review of factual matters, his Honour dealt with the matters put to him by the appellant, which were primarily concerned with factual matters. 20 In submissions put to us, the appellant took issue with a number of matters all of which are factual matters dealt with one way or another by the Tribunal. 21 The appellant said that the Tribunal misunderstood or misinterpreted what he said about whether he had mistreated people in the past. The appellant also complained about various mis-statements or 'mis-translations' of his evidence by the Tribunal in its reasons. Some of the appellant's complaints are without substance and may be assumed to arise because of the inherent difficulties involved in translation and retranslation. For example, the appellant, as we understood him, complained that although he had given evidence that people were brainwashed by X, there was no mention of it in the Tribunal's reasons for decision, or possibly in the transcript of the hearing before the Tribunal. Further, he said that he had given evidence that he 'was on the motorbike track for a while in [Z]' and that no mention was made of this in the transcript. In fact, however, the reasons for decision of the Tribunal refer explicitly to the appellant's claim to have been brainwashed by X and to the appellant's evidence that only X members were allowed to ride Suzuki 1000 motorbikes and to the seizure by X of his X Suzuki 1000 motorcycle. 22 We give consideration below to the more important of the appellant's other complaints concerning alleged misunderstandings or misinterpretations. Whether considered individually or cumulatively, even if it be assumed that the complaints have substance, the matters complained of are not of a character which would deprive the hearing before the Tribunal of the character of a hearing, or which would mean that the Tribunal failed to give consideration to the claims advanced by the appellant or otherwise to direct itself to the task required of it by the Act. To the extent, if any, that the Tribunal may have been led into factual error, no error was made by the Tribunal which would fall within par 476(1)(g) of the Act. 23 An evasiveness in the reasons of the Tribunal was alleged in the way it dealt with the topic of the suicide attempt. We see no basis for that allegation. To the extent it may have founded an implicit assertion of bias, we reject it. 24 Unfairness was claimed in the way the Tribunal dealt with a lack of documentary evidence of the revolutionary court summons. No error under s 476 of the Act is displayed by the way the Tribunal dealt with this topic. 25 Complaint was made about the refusal of the Tribunal to look at and consider documentation concerning the appellant's assets in country Z. The primary judge and the Tribunal were both of the view that such material was not relevant. The documents were placed before us, their nature explained by the interpreter and they were admitted into evidence. We see no error in the conclusions of the primary judge. The appellant said that the material showed that he was well-off and had no financial reason for leaving country Z: that he was not a so-called 'economic refugee'. However, so much was accepted by the Tribunal in its finding that he was financially secure and that his family was well-off. This, no doubt, informed the view of the primary judge as to the irrelevance of the material. 26 We were provided with material which was said to have been provided to the Tribunal and to indicate that the son of the head of a paramilitary unit had fled country Z and been granted refugee status in the United States. It was claimed that the Tribunal did not look at this material. We can draw no such conclusion from the absence of its discussion in the reasons. In any event the circumstances of another person's claim in another country is not relevant. That irrelevance is likely to explain the lack of adversion to it by the Tribunal 27 The appellant complained about findings which he said were inconsistent, about the use of the postal system in country Z. There may be an element of inconsistency. However, in the overall scheme of the otherwise comprehensive fact finding it does not warrant the conclusion of illogicality. Even if it did, it would not amount to a reviewable error for that reason alone: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at [20] to [26]; Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [42] and Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at [16]. The primary judge dealt with these findings in a way which discloses no error. 28 Further submissions were put to us about the factual findings of the circumstances of the appellant leaving country Z. The Tribunal placed some emphasis on what it described as a 'large inconsistency' between his supplementary statement of 12 November 2000 and his evidence up to that point on how his photograph came to be placed in his false passport. The Tribunal said the following: The Applicant was unable to satisfactorily explain the large inconsistency between his supplementary statement of 12 November 2000 and his evidence on how the photo-substitution took place. This is an important aspect of his claims and the Applicant did not convince the Tribunal on how [a country Z] passport in the name of [name supplied] came to have his photograph inserted in it. His written statement suggests that he did it but in evidence he stated [name supplied] organised it. 29 The appellant says that this inconsistency did not exist and its apparent existence was caused by a mistranslation of his Farsi statement of 12 November 2000 in the unofficial translation that was provided to the Tribunal. This translation of the Farsi statement includes the following: …In fact it suffers from a poor economic situation and passing through the airport illegally is not something impossible, as my case officer claims. I used an original passport and I just changed the photo and passed the airport checks without any problems. … [emphasis added] 30 We had the interpreter read to us in English the equivalent passage in Farsi in the appellant's hand which had been translated for the Tribunal in the manner set out in [29] above. It would appear that the correct translation was in the passive and was not that 'I just changed the photo', but that 'the photo was changed'. 31 However, this error in translation does not reveal any reviewable error by the Tribunal. The error was in a translation provided by the agent of the appellant to the Tribunal. Further, even if the error could be attributed to the Tribunal, it would not enliven subs 476(1) of the Act, and in particular par (g) of that subsection. The alleged inconsistency was treated by the Tribunal as being relevant, and only relevant, to the appellant's credibility. It was not the issue that the Tribunal regarded as most damaging to his credibility. It found his explanation of how he came to be in possession in Australia of his X identity card as of 'greater importance' in respect of his credibility. Thus, even if, contrary to our view, the error in translation can somehow be attributed to the Tribunal, the ultimate decision of the Tribunal was not, as it seems to us, affected by the error of translation. 32 The Court raised one matter with counsel for the respondent which was not raised by the appellant. In the submission of the appellant's migration agent to the Tribunal dated 26 March 2001 the following was stated: Given all that is known from independent reports before the Tribunal, we would submit that it is clear that as a [unit X member] who has fled the country for whatever reason, he will now clearly be regarded by the [country Z] authorities as an anti-regime turncoat/deserter and as an anti-regime fugitive. Further it is clear that his punishment on his return will be severely persecutory. [emphasis in original] 33 The Court was concerned that the Tribunal had not dealt with a claim by the appellant, through the migration agent, that as a member of X the appellant had fled the country for whatever reason. 34 The Tribunal rejected much of the evidence of the appellant, found that the appellant was a member of X (and a committed member) and found that he had left country Z legally. Nevertheless, he had left country Z and the Court was concerned that the Tribunal may not have dealt with one aspect of the claim, that as a member of X who had fled country Z, for whatever reason, the appellant feared persecution. 35 However, the Tribunal made the findings set out in [17] above. In these findings, the Tribunal said that it had considered the whole of the evidence. The Tribunal dealt with the matter as put to it by the appellant. He did not say that he feared persecution because as a committed member of X and lawfully leaving country Z he still feared persecution. On reflection, and reading the paragraph of the migration agent in the context of the whole of the claims, in particular the claim that the appellant 'fled' country Z, we are of the view that the treatment by the Tribunal of the claims of appellant in the manner set out in [17] above does not leave untouched an element of the claim of the appellant such that it could be said that a claim or integer of a claim by the appellant had been left undealt with by the Tribunal, and accordingly that it had not completed its mandated task of review under ss 414 and 415 of the Act; cf W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCA 455 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802. 36 In the above circumstances, we are of the view that there has been no error displayed by the primary judge nor by the Tribunal. Thus, the appeal should be dismissed. We see no reason in the material before us why the appeal should not be dismissed with costs. I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices of this Honourable Court.