FEDERAL COURT OF AUSTRALIA Shariff v Minister for Immigration & Multicultural Affairs [2001] FCA 1828 MIGRATION – protection visa – application for an order of review of a decision of the Refugee Review Tribunal ("the RRT") – whether the RRT made an error of law within s 476(1)(g) and (4)(b) – "no evidence" ground – where the applicant referred to "detention on two occasions" in Part B of the protection visa application form – where the RRT found that the applicant had failed to make an initial claim of arrest WORDS and PHRASES – "no evidence" Migration Act 1958 (Cth) Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 Lia v Minister for Immigration and Multicultural Affairs [2001] FCA 65 MOHAMMED ZAHID SHARIFF V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1233 OF 2001 TAMBERLIN J SYDNEY 21 DECEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1233 OF 2001 BETWEEN: MOHAMMED ZAHID SHARIFF APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: TAMBERLIN J DATE OF ORDER: 21 DECEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for review be granted. 2. The decision of the Refugee Review Tribunal be set aside and the matter remitted to the Refugee Review Tribunal, differently constituted, for consideration in accordance with law. 3. The respondent pay the applicant'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 NEW SOUTH WALES DISTRICT REGISTRY N 1233 OF 2001 BETWEEN: MOHAMMED ZAHID SHARIFF APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: TAMBERLIN J DATE: 21 DECEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant has applied for review of a decision of the Refugee Review Tribunal ("the RRT") which affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant protection visas because it did not consider the applicant and his wife and child to be refugees as defined in the 1951 Convention Relating to the Status of Refugees as amended by the 1957 Protocol. 2 The applicant, who is aged 36 years and married, is a national of Fiji and is of Fijian-Indian ethnicity. He arrived in Australia in February 1996. He claimed before the RRT that he was detained on three occasions between May and September 1988 and that his arrests stemmed from his involvement with the pro-democracy movement from 1987. He claimed that on the first occasion he was arrested, he was accused of being involved in an illegal demonstration. He was released the day after his arrest. He claimed that the second arrest occurred for supplying transport in connection with a demonstration and that he was detained for two days. He claimed that his third arrest occurred for similar reasons and that he was detained for five hours until he paid money for his release. 3 In Part C of his protection visa application form, in response to the question "Why did you leave that country?", the applicant wrote, among other matters, that his "family's lives were threatened" and that he "feared arrest". He stated that further details would be provided soon. In response to a question concerning his fears as to what may happen if he returned to Fiji, the applicant stated that he would "be arrested and harassed and tortured", and that further information would be provided soon. In response to a question as to whether he thought the authorities of Fiji could and would protect him if he went back, he answered in the negative, giving as his reason that authorities disliked and hated him because of his pro-democracy and human rights activities. In Part B of the application form, which related to persons included in the application, the applicant responded to a request to list all the documents he was not providing with the application but would be providing later by listing "evidence of detention on two occasions" and "evidence of political activity". It was not until 23 May 2001 that the applicant swore a statutory declaration elaborating on his application and referring to the circumstances surrounding his claimed arrests in May, August and September 1988. 4 The applicant also made claims before the RRT that he was involved in a joint business venture in Fiji that failed in 1995 and that some Fijian landowners harassed him and his family. He further stated that he had a range of problems with his Fijian employees, including physical violence, threats to his family and demands for money, when he terminated their employment or after they were accused of theft from him or the business. He claimed that disappointed landowners involved in his business venture and Fijian workers might be looking to harm him or demand money from him. He also claimed that he continued to be involved in the pro-democracy movement and that he had a prominent public relations role in the organisation in Australia and that he had been instrumental in developing literature for the movement and feared that a pro-democracy flyer with his name on it might have emerged in Fiji. He also claimed that his parents' lease on premises held by the Native Land Trust Board had not been renewed and that commercial decisions were indistinguishable from political decisions. RRT decision 5 The RRT accepted that the failure in 1995 of a business venture in which the applicant was involved led to conflict with workers, including threats of violence and demands for money. It did not consider that this disclosed a Convention ground. Nor did the RRT accept that anyone with a former interest in the business would still be intent on targeting the applicant or his family. It concluded that neither the applicant nor his family members faced, in relation to the collapse of the applicant's business, a real chance of persecution now or in the foreseeable future for any Convention reason. 6 The application to this Court largely turned on the way in which the RRT dealt with the applicant's claims that he had been detained and arrested as set out in his statutory declaration made on 23 May 2001. The RRT said: "In relation to the applicant's claim that he was arrested on three occasions due to his open support of democratic rule the Tribunal notes that he made no mention of any such problem with the authorities in his initial application for a protection visa. On that occasion he stated that he "feared arrest", but made no allusion to any former arrests. The applicant claims that he made no early reference to periods of detention because he did not have supporting documentation. The continuing absence of any such documentation has not prevented him from making the claim subsequently. It was clearly open to the applicant to make key claims of detention without having corroborative material and in a timely fashion. He has provided no satisfactory explanation for not having done so. In view of the delay in making any claims of arrest or detention, and in the absence of a satisfactory explanation for that delay, the Tribunal concludes in the circumstances of this case that the applicant has belatedly fabricated those claims." It is in relation to this paragraph that the applicant submitted that there has been an error of law within the meaning of s 476(1)(g) and 4(b) of the Migration Act 1958 (Cth) ("the Act"). 7 The RRT also considered the applicant's evidence as to his activities in Australia in support of democracy in Fiji and concluded that there was no basis for determining that he faced a real chance of persecution due to his political opinion on this ground. 8 The RRT then considered the applicant's claim in relation to the non-renewal of his parents' lease of land, having regard to country information. The RRT concluded that, in light of the applicant's general lack of credibility and the timing of his claim that his parents' lease of land had not been renewed, it was not satisfied as to the truth of that claim. In any event, the RRT considered that, even if that claim were to be accepted, the applicant did not have a history of work on the land and there was no credible basis for a finding that he would be denied access to housing or land for any Convention reason such that he would face consequences amounting to persecution. The RRT accepted that the applicant might face "occasional discrimination in Fiji in gaining access to suitable housing" but did not consider that it amounted to a real chance of persecution. The RRT then proceeded to consider in detail country information to the effect that there had been a favourable change in Fiji in the commitment of the Government to maintaining and protecting the human and equal rights of Fiji citizens. The RRT concluded: "In light of aforementioned country information and the profileof the applicant the Tribunal concludes that he does not face a real chance of persecution now or in the foreseeable future by reason of his race or political opinion or due to any other Convention ground. In considering all the circumstances of this case, including cumulatively, the Tribunal finds that neither the main applicant nor other applicants have a well-founded fear of persecution for any Convention reason." (Emphasis added) The present application 9 In this application, the applicant relied on the "no evidence" ground in s 476(1)(g), as qualified by s 476(4)(b). 10 In support of the ground that the decision of the RRT was based on the existence of a particular fact and that fact did not exist, the applicant contended that the "fact" which did not exist was the assertion by the decision-maker that the applicant made no mention of any problem of arrest in his initial application for a protection visa. He contended that it was incorrect to assert that he made no allusion to any former arrest or periods of detention. The applicant said that it was incorrect to state that he delayed making claims of arrest or detention and he disagreed with the conclusion, stated by the decision-maker, that he had "belatedly fabricated those claims". It was submitted for the applicant that the RRT decision was based on the existence of the absence of any claim in relation to former arrest whereas, in fact, the applicant had in substance made such a claim in his application. The applicant also asserted that the misstatement as to any reference, mention or allusion to his former detention had a significant impact on the RRT decision and that the decision was based on an incorrect statement as to the absence of any such matters in the application form. 11 The applicant further submitted that the misstatement as to the contents of the application affected other findings of the RRT as to his "likely profile" and credibility. He contended that, as a consequence of this incorrect finding, the evidence or other material available to the decision-maker was not such as to justify the making of the decision that he and his family were not entitled to protection as refugees. He contended that the primary error referred to above affected the way in which the RRT looked at the consequences and effect of the country information and the final conclusion because the RRT expressly stated that the profile of the applicant was a material consideration in arriving at its ultimate decision. It was submitted that if the RRT had accepted that the applicant had originally claimed to have been arrested in 1988, this would likely have affected its decision to reject his application for review because past persecution, detention or arrest must have an important bearing on the history of the applicant's experiences and "his profile" in Fiji, which could support the finding that the applicant would face a real chance of persecution for a Convention reason if returned. legal principles 12 The "no evidence" ground has been considered by this Court in a number of recent decisions. None are referred to in the RRT decision. 13 In Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352, the Full Court decided that the RRT, by wrongly stating that a claim by the applicant to be an office-holder in the Peoples' Democratic Party ("HADEP") had not been made in his initial submissions, had erred and that the ground of review in s 476(1)(g) had been established. The Court said, at [20]: "The tribunal did not accept that the appellant was a member or an office-holder in HADEP and it is apparent from the tribunal's reasoning that that finding or conclusion was critical to its decision not to grant a protection visa to the appellant. It can therefore be seen that the tribunal based its decision on the existence of the fact that the appellant's claim to be an office-holder in HADEP was not made in his initial submission. That fact did not exist because the claim to be vice-president of the Antalya branch of HADEP had been clearly stated. The Court added, at [21]: "… It is immaterial in our view that the documents promised were never provided and that in his later statutory declaration the appellant said that he had not asked the person who assisted him to complete the form to write that certain documents would be supplied later. What is significant in our view is that there was a clear statement in relation to correspondence or documentation "Regarding his position as vice president of HADEP, Antalya BR". Guden is not entirely analogous with the present case in that, in Guden, there was a "clear" statement as to the position of the applicant. Nevertheless, the reasoning in the Guden judgment provides useful guidance in the present case and the remarks of their Honours are apposite to this case. 14 When considering the reasons given by an administrative tribunal such as the RRT, it is necessary to bear in mind the following caution sounded by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272: "… the 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 … any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." Essentially, the above approach is that, in considering the reasons of an administrative decision-maker, regard must be paid to the substance of what is being said and the effect that should be given to it, when read fairly, in the context of the decision as a whole. An unduly literal or analytic approach should not be adopted in administrative review matters. 15 In the present case, the passage quoted at [6] regarding the applicant's failure to mention the detention was of central importance to the ultimate decision in that it bore on the applicant's credibility, his likely profile, and therefore the reasons for the absence of any real chance of persecution. 16 The relevant issue concerns the determination of what the applicant was asserting in the initial application. In my view, the RRT erred in relation to its finding on the contents and substance of the statements in the initial application with respect to claims of arrest and/or detention. The application was read by the RRT with an undue emphasis on grammatical analysis. On a fair reading of the answers in the application form, the applicant was stating that he had been subject to "detention" on at least two occasions and that he "feared arrest" if returned due to his involvement in the pro-democracy movement. He also indicated that he needed some time to furnish further information in relation to these matters. In the circumstances, the legal distinction between "arrest" and "detention" is artificial and inappropriate. The RRT's misstatement as to the applicant's failure to make an initial claim of arrest, as opposed to mentioning or alluding to detention, clearly affected the conclusion of the decision-maker and led to the important finding that the applicant had "belatedly fabricated" his claims in relation to arrest. 17 When approaching the question whether a decision is "based" on the existence of a particular fact, it is generally appropriate to give a broad meaning to the word "based". The effect of the word was considered by the Full Court in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-221, where Black CJ (with whom Spender and Gummow JJ agreed) said: "Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review." (Emphasis added) The relevant importance of the "fact" is not a controlling consideration. 18 In Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34, the Full Court cited the above passage from Curragh and said, at [34]: "Thus, the appellant must show that the decision of the Tribunal was based upon the existence of a particular fact, and that that particular fact did not exist if he is to invoke successfully ss 476(1)(g) and (4)(b). The particular fact is to be distinguished from the ultimate fact in issue, or a conclusion based upon a series of particular facts, although one of those particular facts may qualify under s 476(4)(b): …" (Emphasis added) 19 In my view, in the present case, the decision that the applicant had failed to make reference to detention or arrest in the initial application, was an error in making a finding of fact which critically led the decision-maker to reach a conclusion adverse to the applicant. 20 Counsel for the respondent noted that the reasoning in Guden had been doubted by Finkelstein J in Lia v Minister for Immigration and Multicultural Affairs [2001] FCA 65 at [33]-[34]. However, this was because, in his Honour's view, the RRT's conclusion that the applicant in Guden was not a member of HADEP involved a "process of reasoning" not involving the finding of fact that the applicant was required to provide certain information. His Honour considered that Guden should therefore be closely confined to its specific facts. I do not, with respect, agree with the reservations expressed by his Honour in Lia because it seems to me that a conclusion, after a process of reasoning, that a matter does not exist necessarily "involves" a finding of fact. This is because the fact found not to exist is the basic premise on which the reasoning process is carried out. Accordingly, I do not think that there is any necessity for Guden to be closely confined to its facts or read in any particular, restrictive way. The language of their Honours in Guden should be given its ordinary and natural meaning. 21 For the above reasons, I am satisfied that the ground argued on the application before me, as to an error falling within s 476(1)(g) and (4)(b), has been made out. 22 The application in the present case should be granted. The decision of the RRT should be set aside and the matter remitted to the RRT, differently constituted, for consideration in accordance with law. The respondent should pay the applicant's costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 21 December 2001 Solicitor for the Applicant: Silva Solicitors Counsel for the Respondent: Robert Bromwich Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 14 December 2001 Date of Judgment: 21 December 2001