FEDERAL COURT OF AUSTRALIA Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 Migration Act 1958 (Cth) Judiciary Act, 1903 (Cth) Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89 Public Service Association of SA v Federated Clerks' Union (1991) 173 CLR 132 Re Australian Nursing Federation Ex parte State of Victoria (1993) 112 ALR 177 SLGB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 262 Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 Velevski v R (2002) 187 ALR 233 APPLICANT A233 OF 2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 845 of 2003 SELWAY J 28 MAY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 845 OF 2003 BETWEEN: APPLICANTS A233 of 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: SELWAY J DATE OF ORDER: 28 MAY 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application for order nisi be dismissed. 2. The applicant pay the second respondent's costs. 3. No order is made in relation to the costs of the first respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 845 OF 2003 BETWEEN: APPLICANTS A233 of 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: SELWAY J DATE: 28 MAY 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicants applied in the High Court for an order nisi seeking the issue of writs of certiorari, mandamus and prohibition and for injunctions against the first respondent ('the Tribunal') and the second respondent ('the Minister'). The applicants seek in those proceedings to have set aside a decision of the Tribunal made on 13 April 2000 which decision affirmed that the applicants should not be granted protection visas. That application for an order nisi has been remitted to this Court. For the reasons given below the application is dismissed with costs. 2 The applicants are husband and wife. They are Albanian citizens. They arrived in Australia on 29 December 1997. They entered Australia on a visitor's visa. On 27 March 1998 they lodged an application for a protection visa. Only the husband (the claimant) made specific claims for protection. In order to obtain such a visa the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') had to be satisfied that the claimant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Migration Act 1958 (Cth) ('the Act'). In general terms the Minister had to be satisfied that the claimant was a 'refugee' as defined in the Convention being a person who: '… owing to a well-founded fear of being persecuted for reason 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.' 3 The claimant argued that he had a well-founded fear of persecution by reason of his political beliefs. There were two bases of that claim: (a) The claimant said that he had expressed political opinions contrary to the then Communist government in Albania and had been imprisoned in 1984 for a term of 14-16 years. He was subsequently released from prison in 1991 when the Communist government collapsed. However, he claimed that the Communists had been re-elected to government in 1996 and were attempting to rearrest all of those released in 1991 so that they could complete their sentences. (b) The claimant said that he joined the Democratic Party upon his release from prison in 1991. He stated that he participated in meetings, but was not particularly active. However, he claimed that those that supported the Democratic Party have been targeted by the Government and that there was no police protection. 4 On 7 May, 1998 the claimant's application for a protection visa was refused by a delegate of the Minister primarily on the basis that the then Socialist regime in Albania had not re-imposed the persecution instituted by the former Communist regime. The applicant sought a review of that decision by the Refugee Review Tribunal. In 13 April 2000 the Tribunal confirmed the decision of the delegate. It will be necessary to consider in more detail below the processes and reasons of the Tribunal. 5 On 18 June 2003 the applicants instituted proceedings in the High Court seeking orders nisi for the issue of writs of certiorari and mandamus in relation to the Tribunal and for the issue of prohibition against the Minister. An injunction was also sought against the Minister. The High Court Rulesprovide that an order nisi for certiorari 'shall not be granted' unless the application is made within 6 months of the decision of the Tribunal: see Order 55 Rules 17. That time can be extended. An application for mandamus in relation to a judicial Tribunal must be made within two months of the refusal of the Tribunal to exercise its jurisdiction or such longer period as may be allowed: see Order 55 Rule 30. No special time limits are imposed under the High Court Rules in relation to applications seeking prohibition or injunctions. However, all of the remedies are discretionary and may be refused for delay. 6 On 14 October 2003 by consent Hayne J remitted the High Court proceedings to this Court. The power to make that order is to be found in s 44 of the Judiciary Act, 1903 (Cth). Under subsection (3)(b) of that section the further proceedings of any matter remitted to this Court shall be as directed by this Court 'subject to any directions of the High Court'. Order 2 of the order made by Hayne J in this case expressly provided that 'The application for an order nisi proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court.' 7 The Rules of this Court do not make provision for an order nisi procedure in relation to what were once called 'prerogative writs'. On the other hand, Order 51A Rule 5 of the Federal Court Rulesat least implies that an application for an order nisi which is remitted to this court should still be treated as an application for an order nisi. Given that the order of Hayne J expressly refers to 'the application for an order nisi' I am satisfied that the current application can be treated as an application for an order nisi for the purposes of Order 51A Rule 5 of the Federal Court Rules. 8 The Federal Court Rulesalso do not impose any time limits for certiorari or mandamus. In Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89 (Applicant S422) Dowsett and Lander JJ expressed a tentative view that the time periods in the High Court for certiorari or mandamus may not apply when the matter is remitted to this Court, at least unless the matter remitted includes an application for an extension of time (as it did in that case). In the case before me the application to the High Court did not seek an extension of time. On the face of it the issue raised but not finally resolved by Dowsett and Lander JJ in Applicant S422 is squarely raised in this case. 9 Nevertheless, it would not be necessary to deal with that issue if the application for an order nisi should be dismissed on the merits. Both parties were content that I should consider that question first and I will proceed on that basis. 10 The test for whether an order nisi should be granted or refused is whether the party seeking it has an arguable case that would justify relief by way of an order absolute: see Public Service Association of SA v Federated Clerks' Union (1991) 173 CLR 132 at 140; Re Australian Nursing Federation Ex parte State of Victoria (1993) 112 ALR 177 at 183. The parties are agreed that in order to obtain an order absolute the applicants must show that there was a jurisdictional error in the process, reasoning or decision of the Tribunal. Consequently the first question for consideration is whether the applicants have an arguable case that there was a jurisdictional error by the Tribunal. 11 The applicants argue that the Tribunal did make a jurisdictional error in failing to take into account in reaching its ultimate conclusion the possibility of error in its intermediate factual findings. In order to understand this argument it is necessary to refer in more detail to the processes and decision of the Tribunal. 12 The claim made by the claimant is referred to above. In support of that claim the claimant was interviewed by the Tribunal. He also asked that a witness, Mr Gjonaj be interviewed. He gave evidence as to the political situation in Albania. He asked that another witness, Mr Lloga be called. Mr Lloga was not available to be called, but the Tribunal said it would receive a written statement from him. No written statement was provided. However, the migration agent who represented the claimant did explain that Mr Lloga would also give evidence as to the political situation in Albania. 13 The claimant also submitted three written certificates. These purported to be certificates made by officials in Albania certifying (1) that in 1969 the claimant had been sentenced to 16 years imprisonment; (2) that pursuant to a decision of 1 December, 1994 he was granted the 'Political Status Right of the Ex Political persecuted citizen'; and (3) that those sentenced for political reasons who had been released before completing their sentence are required to 'appear before the commissariat of their region to verify their early release. Failure to appear will result in a sentence according to the relative article.' 14 The Tribunal rejected the claimant's claims. In relation to the claim arising from the risk of re-arrest if he returned to Albania, the Tribunal did not 'accept that [he] was imprisoned for a lengthy period under the former Communist regime.' The Tribunal gave a number of reasons why it did not do so: (a) The inability of the claimant to give a consistent account of the release date or of the term of his imprisonment. The Tribunal concluded that: 'When these problems with his evidence are considered together, the Tribunal concludes that it is not satisfied that the applicant was sentenced to imprisonment under the former communist regime as claimed.' (b) The inconsistencies between the details given by the claimant as to his imprisonment and as to the risks of him being re-arrested if he returned to Albania and the information within the certificates. For example, one certificate referred to the claimant being imprisoned for 16 years, whereas at least some of his own statements referred to imprisonment for 14 years comprising two separate sentences of eight and six years. The claimant explained these inconsistencies on the basis of the inaccuracy of the documents. Not surprisingly, the Tribunal determined that the documents were of little evidentiary value: 'The applicant stated in the hearing that the dates on the document are not real, as the records have been burned, and those that sign such documents do not care about the dates. Whilst this may be the case the Tribunal does not accept in such circumstances that this certificate is capable of having any weight whatsoever attached to it. In relation to the certificate relating to the applicant being granted the status of an ex-persecuted citizen, the applicant did not know when he was given such status. Again, as the applicant has stated that the dates are not relevant to those who sign such documents, the Tribunal is not prepared to attach any weight to such a certificate. Neither certificate changes the Tribunal's conclusion that it does not accept that the applicant was sentenced for a lengthy period under the former Communist regime. …' 15 The Tribunal also did not accept that the claimant was at risk of being re-arrested. There were three reasons for this: (a) The Tribunal did not accept that the claimant had not completed a sentence: 'Further given that the Tribunal has not accepted that the [claimant] was sentenced in the first place and then released, it follows that the Tribunal does not accept that the applicant is the category of someone who has not completed a sentence.' (b) The Tribunal did not place any weight on the certificate relating to re-sentencing: 'Again, given the evidence given by the [claimant] about certificates being able to be obtained by people who have scant regard for the truth of the contents, the Tribunal does not accept that this certificate is capable of having any weight attached to it.' (c) There was no 'independent evidence' that supported the claim that persons were being re-arrested, and if it was occurring such evidence should be available: ' …the Tribunal concludes that the [claimant] in fact had no problems in the 1990s prior to his departure. In addition the change in his account of when he allegedly learned that people gaoled under the communist regime were being arrested and the differences in his evidence about surveillance satisfy the Tribunal that the applicant is not wanted for re-arrest and was not kept under surveillance. The delegate made the point in his decision that there was no evidence that those released after the fall of the Communist regime were being re-arrested. The Tribunal has also not seen any independent evidence and none has been provided by the applicant or his adviser, apart from a suggestion that Mr. Lloga would state this if he had been able to attend, and considers that if the Socialist Party which is now in government took such a step then there would have been an outcry about it.' 16 Consequently the Tribunal concluded: 'Taking all of the evidence into account, the Tribunal is not only not satisfied that the applicant was detained during the Communist regime, it is also not satisfied that any of those released after the fall of this regime are being returned to prison. In passing the Tribunal does note that the applicant's adviser indicated that Mr. Eric Lloga had he provided evidence would have indicated that people were being re-arrested. However in the absence of this evidence and the circumstances in which it is occurring the Tribunal is left in a position where it is not satisfied that re-arrests are occurring.' 17 In relation to the separate claim that the applicant would be at risk of persecution because of his membership of the Democrat political party, the Tribunal accepted that there may have been persecution of some persons associated with the Democratic party in Albania, relying on information before it, including official reports from third countries. However, the Tribunal did not accept that the claimant was at risk of such harm: '… The Tribunal accepts that Albania faces numerous problems relating to violence and that there have been and will continue to be reports of shootings. The Tribunal also accepts that it ispossible that some of those associated with the Democratic Party may have been targets … However as stated above the Tribunal does not accept that the applicant has had any significant involvement in the Democratic Party. The Democratic Party still participates in the political process and the Tribunal does not read the State Department reports as an indication that all Democratic Party members are at risk. Given this and the applicant's limited involvement the Tribunal concludes that he does not face a real chance of harm because of any association he has had with this party. The Tribunal accepts that violence has led to the population being in fear of being victims of such violence as referred to by the applicant'[s] [sic] witness. However just because there is criminal activity and violence in Albania does not mean that the applicant will be targeted for a Convention reason.' 18 As can be seen some of the Tribunal's conclusions in relation to these factual questions are expressed in terms that the Tribunal was 'not satisfied' or 'does not accept' the relevant factual proposition. The applicants argue that in these circumstances the Tribunal was required to analyse the level of its satisfaction or confidence, or otherwise, for the purpose of reaching its ultimate conclusion as to whether or not it was satisfied that the claimant had a well-founded fear of persecution if he returned to Albania. 19 This argument had some currency some year's ago when it was colloquially described as the 'What if I am wrong?' argument. Some of the cases dealing with that argument might be explained on the basis of the then current statutory regimes for review of the decisions of the Tribunal and may not be directly applicable to the current jurisdiction of this Court as explained by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 20 Nevertheless, the Tribunal may make a jurisdictional error if it confuses its findings in relation to 'subsidiary' facts particularly in relation to past events with the ultimate question it must decide, namely whether or not it is satisfied that the applicant has a well-founded fear of persecution. I explained the difference between the Tribunal's analysis of past events and its responsibility to address the 'ultimate question' in SLGB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 262 at [16]: 'Of course, the issue before the Tribunal was not whether the applicant had been "persecuted" in the past but whether he had a well-founded fear of persecution if he was returned to [his country of citizenship]. What had happened in the past was only relevant because the applicant referred to it to explain his current subjective fear, and as evidence from which it might be inferred objectively that something similar might occur in the future: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574-575; M66 in the matter of an application for writs of Prohibition, Mandamus and Certiorari against the Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 1482 at [24]; SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1315 at [97]. To that extent the question apparently addressed by the Tribunal of whether the applicant had in the past "suffered harm amounting to persecution" was not a question it needed to address as such, although the facts it found were relevant to the question it did need to answer.' The determination of this 'ultimate question' requires the Tribunal to engage in a 'process of speculation': see Minister for Immigration and Ethnic Affairs v Guo(1997) 191 CLR 559 ('Guo') at 572. 21 If the Tribunal had rejected the application merely on the basis that it was not satisfied as to the truth of various aspects of the claim of past persecution made by the claimant then this would involve jurisdictional error. The jurisdictional error would be that the Tribunal had not addressed the question it was required to address, namely whether or not it was satisfied that the applicants had a well founded fear of persecution at the time that it made its decision. 22 Related to this potential jurisdictional error, but in fact different from it, is the error that occurs when the Tribunal has confused the issue of whether it is 'satisfied' as to the existence or otherwise of a particular fact, and the issue of whether the Tribunal is satisfied that there was a 'real chance of persecution', this being the relevant test as to whether the applicant's subjective fear of persecution is well founded. Plainly enough the question whether the Tribunal is satisfied as to the existence of a particular fact is different from the question whether it is satisfied that there is a 'well founded fear of persecution': see Guo at 576; Abebe v Commonwealth (1999) 197 CLR 510 at 544-545; Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239-241; WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399. 23 It is important in this context that the basis of these two possible jurisdictional errors - the failure properly to address the ultimate question that the Tribunal must address - be clearly understood. Otherwise there is a risk that using terms such as 'what if I am wrong?' to describe the relevant issue may distract from what is the real issue of whether the Tribunal properly addressed the ultimate question. For example, there is a risk that it might be thought that the failure of the Tribunal to ask itself expressly the question 'what if I am wrong?' and answer it might be thought to result in jurisdictional error. However, there is no jurisdictional requirement that the Tribunal answer that question. Not surprisingly it usually does not do so expressly and did not do so in this case. What it is required to do is to take all of the relevant circumstances into account (including whatever doubts and contingencies the Tribunal has in relation to any facts) in determining whether it is satisfied that there is a real chance of persecution for a Convention reason. 24 Nor is the Tribunal required to reach any particular degree of satisfaction in relation to any facts that are not 'indispensible' to its ultimate conclusion, even if those facts are to be taken into account in reaching that conclusion: see Velevski v R (2002) 187 ALR 233, 244-245 [43]-[44] per Gleeson CJ and Hayne J. 25 In order to succeed in their application for an order nisi the applicants must show in this case that there is an arguable case that the Tribunal made one or other of these jurisdictional errors. As already mentioned the applicants refer to the various references by the Tribunal to its state of satisfaction in relation to various factual issues. Of course, it was entirely a matter for the Tribunal as to whether it was satisfied (and as to the 'extent' of that satisfaction) as to the various factual matters that were before it. However, the applicants argue that I should infer from the use of these terms by the Tribunal that any stronger opinions were not reached. At least in this case I cannot see any reason to make that inference. 26 The applicants also draw attention to the fact that the Tribunal did not expressly in its reasons ask itself 'what if I am wrong?'. They ask me to infer from this that the Tribunal has not properly dealt with the question of whether there was a real risk of persecution for a Convention reason. However, this submission seems to me to involve the error already identified above - the error in treating the phrase 'what if I am wrong?' as imposing some positive obligation upon the Tribunal both to ask and answer that question. 27 In my view it is clear that the Tribunal did properly ask itself and answer the ultimate question it was required to answer. The Tribunal properly identified the legal issue it had to address: 'Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well­ founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.' The Tribunal then expressly purported to address the ultimate question it was required to answer: 'Taking all of the [claimant's] claims into account both separately and cumulatively the Tribunal finds that the [claimant] does not face a real chance of persecution for reasons of his political opinion or for any other Convention reason should he now return to Albania. The Tribunal finds that the [claimant] does not have a well-founded fear of persecution for a Convention reason.' As can be seen the Tribunal purported to take into account the claimant's claims 'both separately and cumulatively'. The reference to 'cumulatively' would suggest that the Tribunal was aware that it was required to take all of the material before it into account. Having done so the Tribunal was able to state its findings in positive terms. It did not merely conclude that 'it was not satisfied' that the claimant had a well founded fear of persecution (although that finding would have been sufficient), it went further to make a positive finding that the claimant did not face a real chance of persecution. 28 In the circumstances I do not think that it is arguable that the Tribunal failed to address the question of whether the claimant had a well founded fear of persecution for a convention reason; nor do I think it reasonably arguable that the Tribunal confused the question of whether it was satisfied as to the existence of a particular fact with the ultimate question of whether there was a real chance if persecution if the claimant returned to Albania. 29 The application for an order nisi must be dismissed. In the circumstances it is clearly appropriate that the applicants pay the costs of the second respondent. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate: Dated: 28 May 2004 Counsel for the Applicant: S Ower Solicitor for the Applicant: McDonald Steed Counsel for the First Respondent The First Respondent did not appear Counsel for the Second Respondent: K Tredrea Solicitor for the Second Respondent: Sparke Helmore Date of Hearing: 3 May 2004 Date of Judgment: 28 May 2004