Jaber v Minister for Immigration & Multicultural Affairs [2001] FCA 1388

FEDERAL COURT OF AUSTRALIA

Jaber v Minister for Immigration & Multicultural Affairs [2001] FCA 1388 IMMIGRATION - judicial review - refugee - Refugee Review Tribunal - approach to assessment of credibility - whether incorrect approach - nature of Tribunal hearing - whether unfair questioning - attack on merits of decision - no ground for judicial review disclosed. Migration Act 1958 (Cth) s 414, s 476

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 cited Kopalapillai v Minister for Immigration and Multicultural Affairs(1998) 86 FCR 547 cited Abebe v The Commonwealth (1999) 197 CLR 510 cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited Bakhtyar v Minister for Immigration and Multicultural Affairs [2001] FCA 947 cited AYMAN JABER v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W141 of 2001 FRENCH J 28 SEPTEMBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W141 OF 2001

BETWEEN: AYMAN JABER

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 28 SEPTEMBER 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent's costs of the application.

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 W141 OF 2001

BETWEEN: AYMAN JABER

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 28 SEPTEMBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT Introduction 1 The applicant is a stateless Palestinian who arrived in Australia in December 2000 without travel documents. He has applied for and been refused a protection visa. He has unsuccessfully sought review of that decision by the Refugee Review Tribunal ("Tribunal"). He now applies to this Court for an order of review of the decision of the Tribunal. The application turns largely upon what is said to be the Tribunal's flawed approach to assessing his credibility. Factual Background 2 The applicant arrived in Australia by boat on 16 December 2000 without travel documents. He is a stateless Palestinian who was born and resided in Syria. He is 36 years old and is married with three children. His wife, a Syrian Palestinian, has remained in Syria with their children. He is a plumber. He has lived at the same address in Damascus since 1964, except for a period between 1991 and 1994 when he worked in Libya. He has been registered in Syria, along with other members of his family, by the United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA). He has a continuing right of residence in Syria by virtue of that registration. 3 The applicant claimed that, in November 1999, two security officials from the Syrian government came to his house in Damascus and detained him. He was taken to the political security branch, put in a room with fifty or sixty other people and then interrogated about his connections with persons associated with the Palestinian leader, Yassar Arafat, the Palestinian Liberation Organisation (PLO) and the Fatah movement. He expressed his belief that his name had been mentioned by other people who had been detained in similar circumstances. He said he was accused of affiliation with the PLO, interrogated and beaten over a period of two weeks following his detention. He was shown photographs and asked about people from his own area. He denied any knowledge of them. One of the photos showed a man he initially described as a friend from his area and later as a relative. He denied to the authorities that he knew the man. He explained to the delegate and to the Tribunal that he was a friend who had married a distant relative. 4 He claimed that following two weeks of mistreatment he was transferred to another political security branch where he was detained until 17 June 2000. At his initial interview after arriving in Australia, he said he had been kept in a single cell for one and a half months before being transferred. Prior to his release he was returned to the original political security branch which had detained him and was again questioned. On this occasion the authorities asked him to co-operate if he heard or saw anything to do with Arafat's group. He agreed and was released within a few days after being warned not to tell anyone of his experiences. The applicant told the Tribunal that he was kept under surveillance after his release. He did not tell his relative that her husband (the applicant's friend) was the target of intelligence interest because he was being followed. 5 The applicant said that seven to ten days after his release he was summonsed to return to the political security branch where he was again asked for information about people who had been discussed during his detention. He said he did not have any information but was told he would be in trouble if he did not provide it. He was summonsed again three weeks later, but his father advised him to leave the house and hide as the security officials wanted to force him to co-operate in ruining other people's lives. He presented two documents to the Tribunal which he said were the summonses of 9 and 16 August 2000 which directed him to attend at the security branch offices. The date of the summonses were inconsistent with his submissions of being summonsed in June/July. In written submissions lodged with the Tribunal on 7 March, it was said that the discrepancy in dates was the consequence of his faulty memory and confusion over the conversion of dates from the Arabic to the Gregorian calendar. Subsequently he wrote that the summonses were delivered to his house and received by his wife in September, but he did not answer them. They were passed on to him by his brother-in-law before he left for Australia. 6 The applicant said that he hid with various relatives who eventually advised him to flee the country. His wife told him officials had inquired after him at their home and kept patrolling the local area all the time. His father made contact with a people smuggler and they arranged for the applicant to leave through the international airport after paying bribes to avoid security procedures. The applicant told the Tribunal that the smuggler gave him a 100% guarantee of safety in connection with the bribe. He went to the airport with family members and with the smuggler. The smuggler spoke to a security official and directed the applicant to a particular queue where he was assisted after presenting his travel documents. He caught a plane to Indonesia via Dubai and Kuala Lumpur. He gave his travel documents to the agent in Indonesia who arranged his boat passage to Australia. 7 The applicant had not encountered any other difficulties with the authorities in Syria and had not been involved in political activities or affiliated with political groups who are subject to harassment by Syrian authorities. He supports the peace process pursued by Arafat and the PLO, contrary to the prevailing Syrian position and said he feared persecution for that reason. He said he had left the country illegally and would have difficulty returning to Syria. He has no UNWRA protection while outside certain areas of the Middle East although he agrees that he is permitted to reside temporarily in Syria. The Tribunal's Decision 8 In its decision, the Tribunal accepted that the applicant was born to Palestinian parents in Syria and that he was stateless. It accepted that he and his family were registered with UNWRA. It noted there are currently nearly 400,000 UNWRA registered Palestinian refugees in Syria, some of whom arrived as long ago as 1948. Most were born in Syria. Such registered Palestinians have nearly the same status as Syrian nationals. They are free to live anywhere in Syria and have equal rights in areas of education, employment, trade and health. They may own or lease businesses and commercial properties. Unlike Syrian nationals however, they cannot own more than one residential property and cannot own arable land. They can belong to one of the legally permitted political parties, but cannot vote or stand as candidates for the Syrian Parliament or for the Presidency. Palestinians resident in Syria can obtain a travel document which allows them to travel abroad and return without a re-entry permit. As with Syrian nationals, the travel document can be changed or re-issued by any Syrian representative office abroad. 9 The Tribunal was satisfied that the applicant had a right to resume residence in Syria and that it was appropriate that his claims be assessed in relation to Syria as his country of former habitual residence. The Tribunal considered whether or not he would face a real chance of persecution because he is Palestinian. It observed that although there have been periods when Palestinian dissidents or suspected dissidents were seriously mistreated, the available evidence led to the conclusion that they are accorded rights more or less equal to those of Syrian nationals and do not encounter significant discrimination. The applicant had not claimed that he feared persecution merely because he was Palestinian. 10 The applicant had stated that he was politically active and had never encountered any problems with Syrian authorities until he was detained in November 1999. He had been a supporter of the peace process between Israel and Palestine. Central to his case was his claim that he was detained for seven months and interrogated on his knowledge of PLO/Fatah connections. His claimed detention, as the Tribunal observed, was at odds with his trouble free life until then, his lack of political activities or connections with political groups and his ability to pursue a relatively comfortable life style, including working overseas before returning to Syria. The Tribunal said: "His explanation for calling one of the people he was asked to identify a "friend" and later a "relative" is hardly believable and his failure to tell the relative to whom that friend was married, and lived in the same suburb, that the friend was a target of adverse political interest, is not plausible." The Tribunal found it odd that authorities would ask the applicant to be an informer having failed to extract any information from him over a period of seven months in detention. It also found it odd that they would summons informers or collaborators by a formally issued summons, delivered to the house. It was incongruous that the authorities would enlist the applicant as an informer in relation to PLO meetings and movements when he had no history of political activities or connections. 11 The Tribunal referred to the inconsistencies between the dates on the summonses and the dates of the applicant's alleged calls to attend the security office. Considering his account of events as a whole, the Tribunal concluded that the applicant had contrived the story that he was detained, tortured and summonsed on several occasions for the reasons he had given. That conclusion was consistent with his ability to leave the country unhindered. Having alleged he was the target of at least four unanswered summonses, the applicant claimed he was able to leave the Damascus international airport using his own travel document. Country information indicated that he would have been required to obtain an exit stamp before going to the airport. It also indicated that security vetting would occur at the stage of obtaining an exit permit commencing at the local army office and continuing until departure through the airport. The Tribunal did not accept that the applicant would have been able to avoid security vetting had he been, as he claimed, accused of being a spy and subject to a summons for that reason. The Tribunal found that the applicant had legally left Syria and was able to do so because the Syrian authorities had no adverse interest in him. 12 The Tribunal also found that even for known asylum seekers who leave illegally, the penalty is commensurate with a breach of the laws relating to crossing a border and, in the circumstances, would not amount to persecution. DIMA officials who had met with the Syrian head of immigration in the Interior Ministry, were recently informed that "all Syrian nationals who are currently unlawfully in Australia will be allowed to return to Syria without question". The Tribunal was satisfied that the applicant could establish his identity, obtain appropriate documentation and return to Syria without a real chance of being persecuted for reason of his political opinions. The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason should he return to Syria. Grounds of Review 13 The application for an order of review originally filed by the applicant in person was amended at the hearing by counsel, Mr Paul Sheiner, who was acting pro bono for the applicant. The grounds of the application were set out as follows: "5. The grounds of the application are - (a) The person who purported to make the decision did not have jurisdiction to make the decision, as the Tribunal's decision was not a review of an RRT reviewable decision under s 414 of the Act and/or the Tribunal's decision was not authorised by s 65 of the Act. PARTICULARS (i) The Tribunal adopted an incorrect approach to assessing the credibility of the Applicant. (ii) The Tribunal failed to have regard to relevant considerations in assessing the credibility of the Applicant. (iii) The Tribunal decision exhibited flawed logic. (iv) The Tribunal could not reasonably have formed the view the Applicant was not a refugee for the purpose of the Convention. (b) The Tribunal's decision was not authorised by the Act or the Migration Regulations as the Tribunal's decision was not a review of an RRT reviewable decision under s 414 of the Act and/or the Tribunal's decision was not authorised by s 65 of the Act. PARTICULARS (i) The Tribunal adopted an incorrect approach to assessing the credibility of the Applicant. (ii) The Tribunal failed to have regard to relevant considerations in assessing the credibility of the Applicant. (iii) The Tribunal decision exhibited flawed logic. (iv) The Tribunal could not reasonably have formed the view the Applicant was not a refugee for the purpose of the Convention. (c) The Tribunal's decision contains errors of law that involve an incorrect application of the law to the facts as found by the Tribunal or an incorrect interpretation of the applicable law. PARTICULARS (i) The Tribunal adopted an incorrect approach to assessing the credibility of the Applicant. (ii) The Tribunal failed to have regard to relevant considerations in assessing the credibility of the Applicant. (iii) The Tribunal decision exhibited flawed logic. (iv) The Tribunal failed to consider whether the Applicant had a well-founded fear of persecution by reason of his political opinion. (v) The Tribunal failed to have regard to apply the correct test of whether the Applicant had a well founded fear of persecution. (d) There was no evidence or other material to justify the Tribunal's decision and the Tribunal's decision was based on a fact which did not exist. PARTICULARS (i) The date of the summons referred to in the Tribunal's decision were 9 and 16 August 2000 not 9 and 16 1999. (sic) (ii) The Applicant did not change his story in relation to the summons. " Statutory Framework 14 The duty of the Tribunal to review decisions which are the subject of an application for review is set out in s 414 of the Migration Act 1958 (Cth): "414(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3)." 15 The grounds for review of the Tribunal decision are as set out in s 476 of the Act which provides, in the relevant parts: "476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; … (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; … (g) that there was no evidence or other material to justify the making of the decision. … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." The Tribunal's Approach to Credibility 16 The first three grounds of review are based upon the Tribunal's approach to assessing the applicant's credibility. 17 It was submitted that in assessing whether or not an applicant has established that he or she faces a well-founded fear of persecution for a Convention reason, the Tribunal is to take a liberal approach to the evidence - Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. It was submitted, quite properly, that the Tribunal in determining refugee cases should be sensitive to the fact that they involve special considerations arising out of problems of communication and mistrust and problems flowing from the experience of trauma and stress prior to arrival in Australia - Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 556-559. Counsel also referred to the observations of Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510 at 577-578, where it was said: "…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision." 18 The Tribunal did not expressly state that it took these considerations into account when exercising its discretion. Indeed in what one may call, without any disrespect, the boiler-plate part of the Tribunal's reasons, in this case the usual reference to the approach to determining issues of credibility and to the authorities which have dealt with that issue, was not made. It was submitted that in this case the Tribunal failed to take the appropriate approach in assessing the credibility of the applicant and in so doing committed a jurisdictional error in that either the decision was not a review for the purposes of s 411 or the Tribunal could not reasonably have found that the applicant was not a refugee for the purposes of the Convention. Alternatively, the Tribunal's failure to take the appropriate approach to the assessment of credibility was said to amount to an error of law, being an incorrect application of the law to the facts as found. In relation to the first limb reliance was placed on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. 19 It was submitted that the decision of the Tribunal in this case turned upon the credibility of the applicant. This was not a case where the Tribunal was required to apply a "what if I am wrong test?". It was satisfied that the applicant was lying and that the story of his detention, torture, release and subsequent summonsing by Syrian authorities was false. Moreover it found he was able to leave Syria legally and had done so and that Syrian authorities had no adverse interest in his case. Counsel submitted, however, that the principal matter upon which the Tribunal based its findings as to credibility were statements by the applicant in response to what could be characterised as unfair questioning in the nature of cross-examination by the delegate. There was no evidence or material before the Tribunal that contradicted the applicant's testimony and the summonses provided substantially independent corroboration of that testimony. Other than in respect of the alleged inconsistency between the dates on the summonses and the dates of his detention, the Tribunal's decision rested on a subjective finding that the testimony was implausible or unbelievable in respect of which it could just as easily have taken a contrary view. 20 In support of this contention it was argued that the fact that the applicant was not a member of the PLO did not make his detention and interrogation implausible given conditions in Syria. The Tribunal overstated his lack of political involvement and failed to have regard to the fact that he didn't warn his relative because he was not in Syria. The use of a summons by security police in respect of the applicant was not inconsistent with material before the Tribunal and was not inherently implausible. Moreover, there was material before the Tribunal to support the view that it was possible for the applicant to leave the country on his own passport despite his unanswered summons. 21 I have read the transcript of the proceedings before the Tribunal. It is the case that the Tribunal operates not as a judicial body but as an extension of the Executive and as an inquisitorial fact finder. Fairness requires that it put to applicants matters that may be the basis of a decision adverse to applicants and give them the opportunity to comment upon such matters. This does create the impression from time to time of cross-examination. It is, of course, incumbent upon the Tribunal member to avoid creating an atmosphere of hostility or antagonism which may compromise the appearance of fairness. There is nothing on the material before me to indicate that there is any basis for review of the Tribunal's findings as to credibility turning on the way in which the Tribunal questioned the applicant. 22 Having regard to the Tribunal's reasons, I cannot accept the submissions made on behalf of the applicant that its findings as to credibility were informed by an approach that was so flawed that it would constitute either a failure to exercise its jurisdiction or an error of law. Although counsel, in the arguments which I have outlined and in oral submissions to the Court, said all that could be said on this issue, in the end it reduced not to a question of jurisdiction or error of law but rather an attack upon the merits of the Tribunal's decision. In the particulars it is said that the Tribunal's decision exhibited flawed logic. I am not satisfied that that is the case and even if it did that would not of itself be a basis for review - as to that see the discussion in Bakhtyar v Minister for Immigration and Multicultural Affairs [2001] FCA 947 on the minimum rationality principle and authorities dealing with the question of illogicality. 23 The Tribunal was not obliged to accept the applicant's testimony and was entitled to make an assessment of it as inherently improbable. Certainly on the account given to it by the applicant that inference was open even allowing for a correct application of the generous approach to credibility assessment referred to above. There is nothing to suggest that the Tribunal failed to apply the correct test in determining whether or not the applicant had a well-founded fear of persecution by reason of actual or imputed political opinion. It found as a matter of fact that the Syrian authorities had no adverse interest in him. It would follow as a matter of logic that the applicant was not a refugee for the purposes of the Convention and would not be at risk if returned to Syria. 24 The first three grounds of review all deal with the question of the Tribunal's approach to credibility characterising it in various ways as supporting a ground of review. The fourth ground is a no evidence point and it endeavours to make something out of what is obviously a typographical error in the Tribunal's reasons in the date that they attribute to the two summonses produced to the Tribunal by the applicant. There is nothing in that point. Conclusion 25 For the above reasons the application will be dismissed with costs.