FEDERAL COURT OF AUSTRALIA IMMIGRATION LAW- review of decision of Refugee Review Tribunal – whether Tribunal failed to observe s 420 procedural requirements – whether Tribunal adopted wrong approach in examining question of applicant's fear – no express finding by Tribunal as to applicant's genuine fear – finding that fear could not be well-founded – no error of law identified. Migration Act 1958(Cth), ss 420, 476(1)(a), 476(1)(e) Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, distinguished Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited Politis v Commissioner of Taxation (1988) 16 ALD 707, cited Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, cited RABIH ANTONIOS BOULOS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 103 of 1998 BRANSON J SYDNEY 10 JUNE 1998 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 103 of 1998 BETWEEN: RABIH ANTONIOS BOULOS Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE(S): BRANSON J DATE OF ORDER: 10 june 1998 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal be affirmed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 103 of 1998 BETWEEN: RABIH ANTONIOS BOULOS Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE(S): BRANSON J DATE: 10 june 1998 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa. The applicant is entitled to a protection visa if the relevant decision maker is satisfied that he is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Refugees Convention"). Under the Refugees Convention, Australia will have protection obligations to the applicant if he is a person who – "… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; … ." (Article 1A(2) of the Refugees Convention) FINDINGS OF THE TRIBUNAL The applicant, who was aged twenty-one years at the time of the Tribunal hearing, is a citizen of Lebanon who arrived in Australia on 27 April 1996. He lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act") on 24 May 1996. On 4 March 1997 a delegate of the respondent refused to grant the protection visa sought by the applicant. The applicant claims that his life would be in danger if he returns to Lebanon. The applicant left Lebanon legally on 26 April 1996 travelling on a passport issued on 17 February 1996 which remains valid. He claims to have served with the Christian Lebanese Forces ("the LF") and to have worked in a minor role as a guard at the home base of Mr Samir Geagea ("Mr Gaegea"), the former leader of the LF, from 1 April 1991 until 23 April 1994. He further claims to have been arrested and tortured by the Lebanese authorities and the Syrian intelligence forces. In addition he asserts that such authorities want him to give evidence as a prosecution witness against Mr Geagea on charges of bombing and assassination. Mr Geagea was arrested in April 1994. The applicant claims that after this arrest he returned home and worked with his father as a plumber. On 8 February 1995, on his story, he was arrested and detained for a day, during which time he was beaten and questioned about his LF involvement. He also claims to have been arrested on 11 March 1995 and interrogated about those in the LF responsible for certain deaths. He says that he was tortured on this occasion and only released after agreeing to give evidence against Mr Geagea. He further claims to have been taken back to the Ministry of Defence on a later occasion when he was well-treated, instructed about the evidence he was to give at the trial of Mr Geagea, and threatened with death if he diverted from his script. I interpolate that the applicant concedes that Mr Geagea has, subsequent to the applicant's departure from Lebanon, been convicted of serious criminal offences and sentenced to life imprisonment. He asserts, however, that Mr Geagea faces additional charges in Lebanon on which he has not been tried. The applicant says that his father then helped him hide from the authorities for the next six months in a town called Bechare in the northern mountains. Subsequently, he says, he moved to a town called Bkaakafra. On 19 April 1996, on the applicant's story, his father came to Bkaakafra with a Syrian army lieutenant who escorted him to the Australian Embassy in Beirut where he obtained a visa. Then, the applicant says, the same Syrian officer escorted him to the airport "for a lot of money" from where he flew to Australia. Before the Tribunal the applicant expanded on his earlier written claims. The Tribunal summarised significant aspects of his evidence as follows: In October 1995, the applicant said his father came to Bechare with a high ranking Syrian officer. This person was described as a colonel who was in charge of security in the Beirut area. The applicant claimed that he was escorted by his father and the Syrian officer through various checkpoints to another town called Bkaakafra, seven km from Bechare. The applicant said that his father continued to visit him in Bkaakafra about once or twice a fortnight. He also claimed that the Syrian and Lebanese Army authorities continued to look for him in the period when he was allegedly in hiding in Bkaakafra from October 1995 until April 1996. The applicant claimed that in April 1996, his father and the Syrian army officer escorted him from Bkaakafra to Beirut. The Syrian army officer took him to the Australian embassy in West Beirut where he signed for a visa to go to Australia. The applicant claimed that he went to the Australian Embassy on 19 April 1996. When asked why the passport had been stamped as having been seen in the Australian Embassy on 18 March 1996 and that the visa on page eight of his passport gave 11 April 1996 as the date of issue, the applicant said he could not remember. He said the Syrian army officer had taken the passport to the Australian Embassy in March 1996 and had fixed up all the formalities including the visa. Asked how he obtained his passport, given its date of issue on 17 February 1996 when he was supposed to be in hiding in Bkaakafra, the applicant said he did not apply for the passport. He said the Syrian officer had obtained it for him. Asked why his photograph was in the passport, the applicant said there were many photographs of himself in his Beirut home. Asked about the signature on page two of the passport, the applicant said it was not his. He claimed that his brother had signed for the passport. When it was pointed out that the signature in the passport looked exactly like the applicant's signature in his primary application for refugee status, the applicant said that his brother was able to make an exact copy of his signature. The applicant claimed that after obtaining the visa, the Syrian army officer escorted him back to Bkaakafra. He claimed that five days later, his father and the Syrian army officer again drove to Bkaakafra and took him back to Beirut to the airport. He claimed that the Syrian officer facilitated his departure by escorting him through customs and immigration to the point where a bus took him to the 'plane." After renewing certain independent country information concerning the Syrian presence in Lebanon, the LF, Mr Geagea and his trial, the Tribunal made certain findings. As to the applicant's involvement with the LF, the Tribunal said: "I accept that the applicant was a supporter of Samir Geagea's LF, that he may have been engaged in guard duties at Geagea's Ghidras headquarters and that he may have known Geagea in some personal capacity. I accept that the applicant may have been detained by the Syrian and Lebanese Army authorities and questioned about LF and its leaders. I also accept that he may have been ill-treated by those authorities. I note however, that the Australian Embassy in Beirut has reported that it was not aware of any credible allegations of torture against LF members since 1994: DFAT Cable, Beirut, BI3589, 'Lebanon: Lebanese Armed Forces: CIS Request LBN 4670', 15 October 1997." The Tribunal concluded that in view of the applicant's slight role with the LF, that "he was not the subject of continuing close interest by the authorities in 1995 or 1996 and nor would he be if he returned to Lebanon." The Tribunal also found that: "If the applicant was a target of interest as he claimed, the authorities would have been able to find him. The applicant claimed that the authorities had made more than fifty visits to his home in Beirut between April 1994 and October 1995 and that his parents' house remained under surveillance until his departure in April 1996. He also claimed that once or twice a fortnight between April 1995 and April 1996, his father drove from his home in Beirut to visit the applicant in Bechare and Bkaakafra. I find it implausible that the authorities were unable to track down the applicant. According to the Documentation, Information and Research Branch, Immigration and Refugee Board, Ottawa, 'Lebanon: General Information on the Current Situation', 15 August 1996, the Syrian presence in Lebanon is pervasive, with the Syrian intelligence network well-established and well-informed in all parts of the country." The Tribunal found support for its conclusion that the applicant was not wanted by the authorities in Lebanon in the fact that he was able to obtain a passport in his own name and with his photograph on 17 February 1996 and to depart from Beirut airport on 26 April 1996. The Tribunal found implausible the claim of the applicant that his departure had been facilitated by a Syrian army officer. The Tribunal was not satisfied that the applicant faces a real chance of persecution for a Convention reason now or in the reasonably foreseeable future. It was thus not satisfied that he is a person to whom Australia owes protection obligations under the Refugees Convention. CONSIDERATION The principal contention made on behalf of the applicant was expressed as follows: "… the Tribunal was bound to make findings about all crucial claims by the applicant and consider those findings of past events as the basis for its finding of what is likely to happen in the future. The Tribunal was bound to make findings of facts in relation to the applicant's claims and whether those facts give rise to subjective fears by the applicant and whether those fears are well founded by the applicant." The contention was said to justify review by this Court of the decision of the Tribunal under s 476(1)(a) of the Act. Section 476(1)(a) provides that a ground upon which an application for review may be made is – "that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;". In Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 a majority of the Full Court of this Court held that a breach by the Tribunal of the requirement of s 420 of the Act to "act according to substantial justice and the merits of the case", so far as that requirement was procedural, would give rise to a ground of review under s 467(1)(a) of the Act. As Davies J made plain at 304, s 476(1)(a) is limited "to the procedures adopted" (see also per Burchett J at 320). As the applicant's submissions in respect to his principal contention were developed, it became plain that such contention was not concerned with the procedures adopted by the Tribunal. Rather, such submission was concerned with whether the Tribunal adopted the wrong approach in examining the question of whether the applicant is outside of Lebanon "owing to a well-founded fear of being persecuted" for a Convention reason. The majority of the Full Court in Eshetu's Case took the view that an error of law of this kind was to be regarded as falling within s 476(1)(e) of the Act, not s 476(1)(a). I do not consider that the respondent will be disadvantaged if I consider the applicant's principal contention as being intended to raise a ground of review under s 476(1)(e). I propose to consider it on that basis. It is necessary to read the reasons for decision of the Tribunal "sensibly and in a balanced way" (per Lockhart J in Politis v Commissioner of Taxation (1988) 16 ALD 707 at 708, cited with approval by Sackville J, with whom Beazley J agreed, in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414). As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272: "[t]he 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 are expressed". It is true that the Tribunal did not make an express finding as to whether the applicant had a genuine fear of being persecuted for a Convention reason if returned to Lebanon. However, the case advanced to the Tribunal by the applicant was based upon an alleged interest that the Syrian and Lebanese authorities had in him when he was in Lebanon. The Tribunal found a central plank of the applicant's story, namely that he was successfully in hiding from the authorities in Lebanon for approximately a year, implausible. It also found to be implausible his story as to the manner of his departure from Lebanon. This case is thus distinguishable from that of Eshetu where the applicant's story was not found to be inherently implausible. That is, in this case, the Tribunal found, on bases not open to challenge on this application for review, that the Syrian and Lebanese authorities were not interested in the applicant at the time that he left Lebanon. It was in such circumstances, in my view, unnecessary for the Tribunal to make a finding on every aspect of the story put to it by the applicant. It was entitled to conclude, having regard to the nature of the case put forward by the applicant, that the applicant's circumstances as they existed at the time that he left Lebanon were an important consideration in respect of its assessment of the chance that he would be persecuted if he returned to Lebanon (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 387, Dawson J at 399, Toohey at 406, Gaudron J at 415 and McHugh J at 433). Indeed, as the High Court pointed out in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 578, whilst past events are not a certain guide to the future, they often provide a reliable basis for determining the probability of events recurring. In this case the Tribunal was entitled to act on the basis that since, on its findings, the authorities in Lebanon had not been interested in the applicant for, at the least, approximately a year before his departure, they would not be interested in him if he returned to Lebanon. Consequently, it was entitled to conclude that any fear that he had of persecution by the authorities if he returned was not well-founded. It thus became unnecessary for the Tribunal to make a finding on whether the fear that the applicant asserted that he had was a genuine fear. I have considered this aspect of the application for review on the basis that it is appropriate for me to follow the reasoning of the majority of the Full Court in Eshetu's Case notwithstanding that the respondent in Eshetu's Case has obtainedspecial leave to appeal to the High Court. Neither party asked me to delay the determination of this matter. Accepting for present purposes the validity of the approach of the majority in Eshetu's Case, I conclude that the principal contention of the applicant is not sustainable under either s 476(1)(a) or s 476(1)(e) of the Act. The subsidiary contention of the applicant was that the Tribunal acted in disregard of the procedural requirements of s 420 of the Act in that it failed to have regard to all of the evidence reasonably available to it, and rather chose to look for the case most unfavourable to the applicant. The applicant did not seek to place any such evidence before this Court. I do not consider that I am entitled to conclude in the absence of such evidence that there was evidence or other material reasonably available to the Tribunal which was inconsistent with its findings and reasoning. Nothing before me suggests that the Tribunal chose to look for the case most unfavourable to the applicant. In any event, it seems to me that the real gravamen of this complaint is that the Tribunal made findings of fact which the applicant wishes to challenge, although he is not in a position to contend "that there was no evidence or other material to justify the making of the decision" (s 476(1)(g)). It is not necessary for me to decide whether a complaint of the nature here advanced could ever amount to a failure to observe the procedural requirements of s 420 of the Act. In this case the Tribunal considered the evidence given by the applicant in the light of relevant information provided by the Department of Foreign Affairs and Trade and other responsible sources. No errors of procedure in respect of its identification of relevant evidence and other material, or in respect of its evaluation of such evidence and other material, have in my view, been demonstrated. CONCLUSION The decision of the Refugee Review Tribunal will be affirmed. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: S Diab, instructed by John Maait & Co, appeared for the applicant. Counsel for the Respondent: R Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 May 1998 Date of Judgment: 10 June 1998