FEDERAL COURT OF AUSTRALIA Hamada v Minister for Immigration & Multicultural Affairs [2001] FCA 1071 SAMI ADEL HAMADA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 54 OF 2001 EMMETT J PERTH 30 JULY 2001 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 54 OF 2001 BETWEEN: SAMI ADEL HAMADA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 30 JULY 2001 WHERE MADE: PERTH 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. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 54 OF 2001 BETWEEN: SAMI ADEL HAMADA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 30 JULY 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant is a resident of Syria. He arrived in Australia on or about 6 October 2000. On 30 October 2000, he lodged an application for a Protection (Class XA) visa with Department of Immigration and Multicultural Affairs. On 15 November 2000, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 20 November 2000, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 20 February 2001, the Tribunal affirmed the decision not to grant a protection visa. THE APPLICANT'S CLAIMS 2 The applicant claimed that he was born in Damascus in 1967. He said that he is a Palestinian citizen, resident in Syria. He travelled to Australia using a Palestinian travel document issued in Damascus. He said that document is now with the smuggler who assisted him to come to Australia. The applicant said he has never married. He is Sunni Muslim. He said his father is deceased and his mother lives in Damascus. He has six siblings, four live in Syria and two in Jordan. He had no knowledge of the United Nations High Commission for Refugees, although he was aware of the United Nations Works and Relief Agency ("UNWRA") for Palestinian refugees. However, he said that he had never been registered with that organisation and does not have a UNWRA card. 3 The applicant claimed that his problem in Syria is that there is a "man wanted by the government by the … same name as mine". He claimed that each time he made a job application or asked for documents, he would be interrogated and gaoled for two or three days. He said he tried to leave the country several times but they would put him in prison and beat him. He said that happened several times and that the last time they detained him for three hours when he was going to Dubai. He said he hated his life there but he has no other reason to fear returning to Syria. 4 In his subsequent application for a protection visa, those claims were repeated. He said in relation to the person with the same name as his that he believed that he is wanted by Syrian intelligence, as he is considered to be a member of the Muslim Brotherhood who "had attempted to organise a coup". He claimed that his problems started in about 1989 after he left the army and applied for a passport. He said that the military security came, questioned him and beat him for two or three days. He was then told that the investigations had nothing to do with him and he was released. He said that happened three or four times from 1989 to 2000. He said in his application that he feared that if he returned to Syria without his travel documents, which he had left with the smuggler in Indonesia, this would confirm the suspicion which the Syrian government has about him and he would be further persecuted as a result. 5 In the course of his original interview with a departmental officer on 1 November 2000, the applicant stated that he had visited his sisters in Jordan ten to fifteen times for up to one month. He also said that he had never been involved in any political activity. He said that while he had never been registered with the UNWRA, his father was a driver for UNWRA. He confirmed that he had no other reason for not wishing to return to Syria other than the claim of having the same name as a person wanted by the authorities. He said he had had no problem returning to Syria after each trip to Jordan. 6 On 10 January 2001, the Tribunal received a letter from the applicant's advisers with three photocopy documents attached, which had been translated from Arabic into English. The Tribunal described the documents as follows: (1) a notice to branches and units of the political and security division to arrest a person by the same name as the applicant dated 3 June 2000, (2) a document headed "Attendance Orders" from the Intelligence Division of the General Command of the Army to a person with the same name as the applicant for him to present himself to the Intelligence Division on 27 September 2000, and (3) a poor copy of a partially translated document bearing the date 26 November 2000, which is from the General Commission for the Protection of the Arab Palestinian Refugees. The document makes no mention of the applicant or anything of any apparent significance. 7 On 16 January 2001, the Tribunal received two letters from the applicant's adviser. One attached a letter from the UNWRA stating that it had no record of a member with the applicant's name. In the other letter the advisers asked that the applicant's claim be considered on the basis that he had been detained and beaten in Syria as a suspected member of the Muslim Brotherhood because of mistaken identity and that, if he returns, he would be beaten again and imprisoned. 8 The Tribunal conducted a hearing at Port Hedland where the applicant is in detention. During the hearing he claimed that he had two problems in Syria. One was "political" and the other was "nationality" in that "over 90 per cent of Palestinians are persecuted in Syria". 9 In relation to the man for whom he claimed to be mistaken, the applicant said that he in fact had no idea at all who that person was, nor why he was of interest to the Syrian authorities. He said that he only knew that he had a similar name, he did not know who he was or anything about him. He was asked whether it had ever occurred to him to do something about the claimed problem. He said that once he had attempted to go to the Ministry of the Interior and see someone, but the guard would not let him in. He said that he was taken to a police station and beaten up. The Tribunal said to the applicant that it was difficult to believe that as being true. The applicant responded that in Syria things like that happen. 10 The applicant said that the claim that he was a suspected member of the Muslim Brotherhood was a mistake of the previous interpreter who had been a male, which is why he had asked for a female interpreter this time. The Tribunal observed that there was in fact no specific request for a particular gender of interpreter. 11 In relation to his specific claims, the applicant said that he had first encountered a problem soon after leaving the army, and that over the years, he had encountered the same problem on numerous occasions. He said he could not say how many times he had been detained and beaten. He was asked several times to clarify and said, "seven, eight, ten, fifteen times, I don't know". The Tribunal put to him that he had previously said that this had caused a problem "three or four times". He responded that that was not true, it happened every time he encountered officials for such things as a passport or driver's licence. He said that he could not remember how many times he had been arrested but said that every time he was arrested, he was beaten. 12 In relation to the three documents that were sent by his advisers, the applicant said that he had received them from his mother some time after 1 November 2000. When asked what the summons was for, he said that when he was leaving Syria he had friends around to say goodbye. He said that they were talking about various things and that he and others made the comment that the system was corrupt, because the government had quickly passed legislation to allow the new President Al-Asad to take office. He said that one of those present, unknown to the others, was in fact a spy for the government. The spy told of what the others had said and hence, a warrant was issued for the applicant. The applicant claimed that his friends had been arrested. 13 The Tribunal pointed out to the applicant that he had made no mention of that matter until the day of the hearing. He claimed that he did not know of it until he had asked his mother for documents to show that the authorities were interested in him. It was then that she said that there was a warrant there for him. He was asked if he had ever told his adviser and he said that he had not. THE TIRUBNAL'S DECISION 14 The Tribunal accepted that the applicant is a Palestinian resident of Syria. It also found that that country was his country of former habitual residence. The Tribunal also accepted that he is who he claims to be. However, apart from those matters, the Tribunal had serious difficulty in accepting the applicant's claims as being true. The Tribunal considered that the applicant had fabricated his claims. The Tribunal considered that when the applicant's claims of a mix-up over his identity and that of another person are given serious consideration, it is not reasonable to accept them as being true. 15 The Tribunal found that the applicant was not a credible witness. It found that the documents claiming to relate to his being required to appear before the authorities relating to the issue of the mix-up in identity were a fabrication insofar as the applicant claimed that they relate to such a mix-up of identities. The Tribunal accepted that the documents may be real. However, the Tribunal did not accept that they had anything to do with the stories claimed by the applicant. The Tribunal postulated that it may be that the applicant is wanted or required to attend for some other reason that he has not disclosed. 16 Having reached that conclusion, the Tribunal then went on to deal with several other matters on the Tribunal considered it should comment. The Tribunal concluded that the evidence did not suggest that the applicant, by being a Palestinian resident of Syria, would be treated any differently from anyone else. The Tribunal considered that if he were being treated in such a manner, he would have complained or sought assistance from the UNWRA or someone else. The Tribunal considered that, in the absence of those matters, his claims were not true. Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, therefore the Tribunal did not consider that the applicant satisfied the criteria set out in s 36(2) of the Migration Act 1958 (Cth) ("the Act") for a protection visa. GROUNDS OF REVIEW 17 The application to this Court for an order for review of the Tribunal's decision filed on 27 February 2001 did not disclose any ground within s 476(1) of the Act. However, the applicant, through his counsel, filed amended grounds of review without objection from the Minister. The amended grounds of review are as follows: "1. The Tribunal erred in law (s 476(1)(e)) and/or exceeded its jurisdiction (s 476(1)(b)), by: a) failing to specify in detail the basis for: i declaring the Applicant's account to be a fabrication, ii declaring the Applicant and his witnesses not to be credible, b) failing to consider whether all or any parts of the evidence provided by or on behalf of the Applicant may be correct and thus justify the contentions put forward by the Applicant; and thereby the Tribunal failed to determine whether the Applicant's fear was well-founded and based on a political opinion imputed on [sic] him due to being mistaken for another person. (2) The Tribunal erred in law when determining that the Applicant was not being persecuted for reasons of the relevant definition in the Convention by reason of him being taken for another person." 18 The first ground is based on the observations of the majority of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, delivered on 31 May 2001 ("Yusuf's case"). The High Court observed that the various provisions of s 476 enumerate the grounds on which judicial review of Tribunal decisions may be sought. The section does so in a way that at least at first sight allows more limited grounds than the grounds on which judicial review may ordinarily be sought. While s 476(1)(a) may not be applicable in relation to a failure to set out findings, it does not follow that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the Tribunal failed to make some relevant finding of fact. A complaint of that kind will often amount to a complaint of error of law or a failure to take account of relevant considerations. Accordingly, ss 476(1)(b), (c) and (e) may have application in such circumstances. 19 In Yusuf's case the Minister submitted that s 476(1)(b) extended only to matters in which the Tribunal or the person who constituted the Tribunal, was not properly authorised to make the decision because, for example, the Tribunal was not constituted in proper way. However the majority of the High Court held, quoting Craig v South Australia (1995) 184 CLR 163 at 179, if an administrative tribunal such as the Tribunal: "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or at least in some circumstances to make an erroneous finding or to reach a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error or law is a jurisdictional error which will invalidate any order or decision of the trial which reflects it." 20 Thus, the High Court held that jurisdictional error can be seen to embrace a number of different kinds of error. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, is the decision-maker both asking the wrong question and ignoring relevant material? Identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is an error of law. Such errors of law result in the decision-maker exceeding the authority or powers given by the relevant statute. Thus, if an error of those types is made, the decision-maker would not have had authority to make the decision that was made. He or she did not have jurisdiction to make it – see Yusuf's case at paragraph [82]. 21 If the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it exceeds its authority or powers. If that is so, the person who purported to make the decision did not have jurisdiction to make the decision he or she made; the decision was not authorised by the Act. 22 If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts as found. If that is so, the ground in s 476(1)(e) is made out – see generally paragraphs [76] to [84] of Yusuf's case. However, making an erroneous finding or reaching a mistaken conclusion is not an error of law of the kind with which s 476(1)(e) deals – see Yusuf's caseat paragraph [84]. Those principles are the principles relied upon by the applicant in the contentions advanced concerning a number of findings or want of findings by the Tribunal. 23 The complaint by the applicant is that, in its reasons, the Tribunal does not properly specify why it reached certain conclusions that led ultimately to its conclusion that the applicant lacked credibility. There are eight such matters, I shall deal with each of them separately. 24 First it is said that the Tribunal did not specify why any questioning of the nature alleged by the applicant would have been limited to one or two occasions in circumstances where the Tribunal had before it a US State Department report on Syria indicating that the branches of the security forces operate independently. Secondly, it was said that the reasons did not specify why the applicant would not have been detained for lengthy periods of time, yet the US State Department report refers to arbitrary arrest and prolonged detention without trial. The relevant part of the Tribunal's reasons on those matters is as follows: "I could understand if there was a mix-up and this resulted in the applicant being detained and questioned on one or two occasions or even if his name caused a concern and it resulted in some questioning. However, I do not accept that such a mix-up and confusion would result in the repercussions as claimed by the applicant, being detained many times over several years. I do not accept that he would be detained for lengthy periods of time…." 25 All that the Tribunal was saying there is that, while it may be that members of the security services commit serious human rights abuses, including arbitrary arrest and detention and prolonged detention without trial, the country information did not indicate that such human rights abuses necessarily occurred arbitrarily without there being some activity on the part of the victim of such conduct that would attract the attention of the authorities. The Tribunal's observations were simply that it did not accept as credible the suggestion that there might be detentions of the applicant over a period of ten years in circumstances where the only reason for the detention was mistaken identity. I do not consider that these matters fall within the principles discussed by the High Court in Yusuf's case. 26 Third, it was said that the reasons did not specify why the applicant would not receive a summons, despite the fact that the applicant brought the translation of the documents to the attention of the Tribunal, thereby allowing the possibility for the warrant to have issued following the applicant's failure to respond to the summons. This refers to the documents to which I have already referred. The part of the reasons about which complaint is made is as follows: "I find that his documents claiming to relate to him being required to appear before the authorities relating to the issue are a fabrication insofar as the applicant claims that they relate to such a mix-up of identities. The documents may be real, however, I do not accept that they have anything to do with the story as claimed by the applicant. It may be that he is wanted or required to attend for some other reason that he has not disclosed." 27 The Tribunal appears to me to be saying there no more than that it seems unlikely that the authorities would have issued a summons to the applicant simply by reason of the mix-up in identities. The Tribunal in fact observed that it may well be that the documents are genuine documents addressed to the applicant in relation to some matter about which the applicant has disclosed no information. I do not consider that the manner in which these matters have been dealt with by the Tribunal suggest that the Tribunal has asked itself a wrong question or ignored relevant material. 28 Next it was said that the Tribunal failed to specify why the applicant should have sought assistance from government agencies when it was these very agencies which detained him. The relevant part of the reasons is as follows: "I do not accept that he would not have been able to do something remedial about it if in fact he had such a problem. In particular I do not accept that he would not be able to approach someone, whether it be the United Nations, UNWRA, a legal adviser, or a government official and seek to remedy the claimed position he was in. The fact that he sought to do this on one occasion only over a period of nearly ten years of claimed arrest and detention clearly indicates to me that his story is fabricated. I note in this regard that the applicant's father was a driver with the UNWRA. Though this is not a senior position, it is none the less one which have afforded him some access to UNWRA officials. He died in 1998. I do not accept that he would have attempted to do nothing in an environment in which his son was regularly detained and beaten." 29 That material also refers to the fifth of the complaints, namely, an assertion that the reasons failed to specify why the applicant's father would have done something about it when the applicant's father died in 1998. Again the material about which complaint is made does no more, in my view, than indicate the reasoning process of the Tribunal in concluding that it was unlikely or inherently improbable that the applicant would have suffered the treatment that he asserted without doing something about it. The assertion is that the conduct continued over a period of some ten years but that on only one occasion did the applicant ever act. On that occasion, the applicant claimed that, when he attempted to go and see a ministry official, the guard would not let him in, he was taken to a police station and beaten. The Tribunal, however, makes clear that it just simply regards that as unlikely. Once again I do not consider that there was any failure by the Tribunal to ask correct questions and address relevant material. 30 Next there is a complaint that the Tribunal did not explain why the applicant was also detained on occasions when he travelled abroad. The complaint seems to be that the Tribunal should not have drawn a conclusion from the fact that the applicant travelled abroad without difficulty in circumstances where he was detained on some occasions. The relevant part of the Tribunal's reasons is as follows: "I note as well that the applicant has travelled regularly in and out of Syria to Jordan where his sister resides, he travelled on documents in his own name issued to him by the Syrian authorities, this indicates that he is not of any interest to the authorities." 31 Earlier the Tribunal had recorded that in his interview with the departmental officer on 1 November 2000, the applicant said that he had visited his sisters in Jordan ten to fifteen times. All that the Tribunal appears to be saying in that passage, it seems to me, is that whereas there might have been some difficulty occasionally, it is clear that the applicant was able to travel to Jordan on numerous occasions without any interference. Once again I do not find any basis for complaint within the principles of Yusuf's case. 32 The seventh matter relied upon relates to evidence concerning a claim made on behalf of the applicant concerning membership of the Muslim Brotherhood. Having reached its conclusion that the applicant had fabricated his claims concerning mix-up with identity, the Tribunal then went on to comment on several other matters. One of those matters is under the heading "The claim of being a suspected member of the Muslim Brotherhood" and the Tribunal said as follows: "The applicant's adviser had submitted this claim after hearing [sic] and it is also mentioned earlier in a submission. The applicant claimed at hearing that he has never claimed this and never said it. He in fact knows nothing about the person whose identity he is supposedly mistaken for. He claims this to be a mistake of interpreting. I do not accept that an interpreter and the applicant's adviser would put forward such a claim unless it had been made by the applicant, I do not accept that it is a mistake of interpreting and find that it was a claim originally made by the applicant and later retracted by him. I consider that this is an indication of the applicant fabricating his claims and exaggerating matters." The first point to observe in relation to this matter is that the Tribunal reached its conclusion concerning the credibility of the applicant without relying upon the material relating to the Muslim Brotherhood. 33 In the course of argument, counsel for the applicant sought to rely on the actual question and answer given in the course of a hearing. There was no evidence before me of those matters. However, counsel for the applicant, without objection from counsel for the Minister, indicated to me the words that he was intending to rely on. The purpose for referring to the exchange was to suggest that the Tribunal's statement that the applicant claimed at hearing that he had never claimed this and never said it was erroneous was itself wrong. Even if the words attributed to the applicant by the Tribunal were not in fact used, it is clear that the actual words amounted to much the same, that is, an assertion that there had never been a claim that the applicant was a member of the Muslim Brotherhood. Even if this were a step in the Tribunal's reasoning, I do not consider that it indicates either an instance of asking the wrong question or a failure to address relevant material. 34 It is probably fair to say that there is some confusion involved in precisely what was being said by the applicant's advisers. In a letter written on 16 January 2001 the applicant's advisers said the following: "The applicant fears returning to Syria because he fears he will face persecution for the following reasons: 1. He has been detained and beaten in Syria as a suspected member of the Muslim Brotherhood because of a case of mistaken identity, and 2. He will be imprisoned upon his return to Syria and assaulted again." Then in a letter of 19 February 2001 written after the hearing the advisers said the following: "It is submitted that the applicant's fears of returning to Syria because he will be detained again as a suspected member of the Muslim Brotherhood and he will also be detained due to his illegal departure, are well founded." The language of both letters is ambiguous. The Tribunal read the letters as being an assertion that the applicant feared to return to Syria because he would be detained as a suspected member of the Muslim Brotherhood. I consider that the advisers were adverting to the possibility that the applicant would be detained because of a mistake as to his identity. It may be that the Tribunal did misunderstand the way in which the advisers' letters were intended and that it may be that there was no retraction by the applicant of any assertion. For the reasons I have given, however, it seems to me that this matter was not essential to the Tribunal's reasoning. It had already reached its conclusion concerning the lack of credibility of the applicant before dealing with this as an additional matter. 35 The final matter that was said to give rise to the application of the principles in Yusuf's case is that the Tribunal did not specify why the applicant was not credible without referring, for example, to inconsistencies in his evidence, his demeanour or other factors which would indicate a lack of credibility. If they were factors that were taken into account by the Tribunal, it may well be that it would have been appropriate for those matters to be referred to. However, there is nothing to suggest that the Tribunal had regard to the applicant's demeanour or other inconsistencies. It simply had regard to what it perceived to be the inherent improbability of the story advanced on behalf of the applicant. 36 It may be, therefore, that if there were a review by way of rehearing, the review tribunal would have been entitled to come to a different conclusion from that reached by the Tribunal. The reasons given by a trial judge for rejecting the evidence of a particular witness may go beyond a simple statement about the witness's appearance or demeanour. The additional reasons may demonstrate that the judge took into account irrelevant considerations or has not properly weighed all of the relevant considerations – see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3 at paragraph [93]. However, the material to which the applicant's counsel has referred does not indicate that the Tribunal did not properly weigh all relevant considerations or that it took into account irrelevant considerations. 37 I do not consider that any of the matters relied on by the applicant suggest that there has been an error of failing to ask the correct question or failing to address relevant material. The Tribunal correctly asked the question "Is the applicant a person to whom Australia has protection obligations under the Refugee Convention?" It went about answering that question by considering the evidence and other material before it and it gave its reasons for reaching a negative answer to that question. The Tribunal addressed all of the relevant material. I am not persuaded that the Tribunal omitted to take account of any material that was relevant to the question that it decided. 38 While it may in some circumstances be an error of law to make an erroneous finding or to reach a mistaken conclusion, it is not an error of law within s 476(1)(e) to do so. It may be that arguments could be advanced in support of the conclusion that the Tribunal in this case did make an erroneous finding or reach a mistaken conclusion. Unfortunately, if that be the case, and I am not suggesting it is, that is not a ground of review under s 476(1)(e). Only certain errors of law that give rise to a ground. They are that there was an error in law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. Insofar as there is any complaint established in relation to the reasons, it is simply that the Tribunal made erroneous findings or reached mistaken conclusions. 39 The second ground relied on by the applicant only arises if he is successful on the first ground. The argument, as I understand it, is that the Tribunal failed to have regard to the possible conclusion that the political opinion of which the man whose identity is confused with the applicant is suspected is, in effect, imputed to the applicant. It would be sufficient to attract the Convention if an applicant had a well-founded fear of persecution for a political opinion imputed to him even if he did not actually hold that political opinion. 40 It was not suggested that the Syrian authorities would impute to the applicant the political opinions embraced by the Muslim Brotherhood. It may be that they would impute such opinions to the person, if there is one, of the same name as the applicant but that is not to impute to the applicant those opinions. As I have said, however, this question only arises if the Tribunal erred in relation to its conclusion that the claims by the applicant were fabrications. For the reasons I have already given I am not persuaded that the attack on those findings is made out. It follows that the second ground simply does not arise. Accordingly, in my view, the application should be dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 4 September 2001 Counsel for the Applicant: Mr H Moser appeared pro bono Counsel for the Respondent: Mr P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 July 2001 Date of Judgment: 30 July 2001