Fathi Kharroubbi v Minister for Immigration & Multicultural Affairs [1998] FCA 178 (3 March 1998)

Last Updated: 10 March 1998

CATCHWORDS

MIGRATION - application for review of decision of Refugee Review Tribunal ("RRT") refusing refugee status - whether fresh evidence not before the RRT can be admitted in proceedings before the Court - whether merits review - whether error of law - whether RRT failed to set out reason for findings or look at "critical" issues.

Migration Act 1958 (Cth), ss 420(1), 430(1)(d), ss 476(1)(a), 476(1)(g), 476(2)(a), (b), 476(4)(b)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; 185 CLR 259 at 272

Navaratne v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal (unreported 1 August 1997 VG 334 of 1996)

Eshetu v Minister for Immigration and Ethnic Affairs (unreported, Full court, 10 July 1997)

FATHI KHARROUBI -V- THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 668 of 1996

O'CONNOR J

MELBOURNE

3 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	vg 668 of 1996

BETWEEN:	FATHI KHARROUBI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE(S):	O'CONNOR J
DATE OF ORDER:	3 mARCH 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 668 of 1996

BETWEEN:	FATHI KHARROUBI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE(S):	O'CONNOR J
DATE:	3 March 1998
PLACE:	melbourne

EX TEMPORE REASONS FOR JUDGMENT

This is an application to review the decision of the Refugee Review Tribunal ("RRT") given on 30 September 1996, affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The grounds stated in the application, summarised, are:

* That there was no evidence or other material to justify the making of the decision. The RRT based its decision on the existence of a particular fact or facts and that fact or those facts did not exist within ss 476(1)(g) and 476(4)(b) of the Migration Act, and;

* That the procedures that were required by the Migration Act to be observed in connection with the making of the decision were not observed by the RRT namely:

(a) Contrary to s 420(1) of the Migration Act, the RRT did not provide a mechanism for review that was fair or just; and

(b) The RRT failed to prepare a statement of reasons for the decision which complied with the requirements of ss 430(1)(d) of the Migration Act.

In relation to each of these grounds particulars were provided.

The applicant seeks an order that the decision of the RRT made on 30 September 1996 be quashed and a declaration that on 2 October 1996 the applicant was a person who had a well founded fear of persecution and was entitled to the grant of a protection visa. Alternatively the applicant seeks an order that the application for the determination of his refugee status be referred to the RRT to be further considered according to law.

Legislative Context

The relevant provisions of the Migration Act in respect of this application are as follows:

"Refugee Review Tribunal's way of operating

420. (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

...

Refugee Review Tribunal to record its decisions, etc and to notify parties

430. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(d) refers to the evidence or any other material on which the findings of fact were based.

Application for review

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:

...

(g) that there was no evidence or other material to justify the making of the decision.

...

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.

...

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

...

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; 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."

Background

The applicant is a 32 year old national of Tunisia whose application for refugee status was based on religion and political opinion. The applicant travelled extensively as a member of the national volleyball team and in 1989 he said he decided to apply Islamic Law to himself. As a consequence he stopped gambling and drinking alcohol and urged others to pray and observe Islamic customs. The applicant also claims that he was sympathetic to the aims of the Al-Nahda movement, a banned political group based on strict Islamic principles.

The applicant claims that on visits to Tunisia in 1994 he had been questioned and detained by authorities about any connection he might have with Al-Nahda. He later left Tunisia via Turkey, Sudan and Thailand and he arrived illegally in Australia in mid-1995. An application for a protection visa was lodged on 11 August 1995. The application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 19 April 1996. An application for review of the delegate's decision was lodged on 16 May 1996. The application for review was rejected by the RRT and his application for a protection visa refused on 30 September 1996.

At the hearing before me on 2 March 1998, the applicant appeared in person. He did not, in making submissions, refer to the contentions which had been prepared by his former solicitor but tendered them for my consideration and I have done so.

RRT's Decision

In relation to the applicant's claim that because of the 1990 crackdown by Tunisian authorities on, among others, political groups considered to be fanatically religious, he curtailed his public activities as a proponent of strict Islamic principles and began attending discotheques with girlfriends the RRT found that:

"He could have, for instance, merely been faithful to his principles in private ways if he deemed it necessary to put the authorities off his trail. There was certainly no obligation on him to behave in public in ways that were incompatible with his avowed principles ... It is not believable that he would have engaged in such sustained unprincipled public activity if his claims of allegiance to a fundamental cause were true."

In relation to the applicant's claim that he was questioned by security forces soon after his return to Tunisia the RRT noted that no harm befell him and he made no admissions to the authorities. Despite the massive crackdown that took place against fundamentalist groups from about 1990, the applicant did not claim that he experienced any other problems until the end of 1994, when he was allegedly detained for three days and questioned over a wide range of issues. He said that he denied any involvement with Al-Nahda at that date and made an unequivocal statement at the RRT hearing that he was released with a paper that verified that he did not face any problems with authorities.

The applicant was able to leave Tunisia legally. Despite his claim that he was under surveillance for several years, and eventually the subject of a serious police operation, he was not on the security list at the airport.

With regard to the document submitted by the applicant concerning his alleged association with Al-Nahda, the RRT noted that the applicant never claimed prior to the hearing that he was actually a member of Al-Nahda. The applicant claimed the document confirmed his support of the organisation. The RRT also noted that he joined Al-Nahda after his application for a protection visa was rejected by the Department of Immigration and Multicultural Affairs. The RRT concluded:

"In assessing all the circumstances the Tribunal finds that the applicant's claims of support of fundamentalism are not credible. The Tribunal is not satisfied that he was ever an active support of A-Nahda or of the cause it espoused and that his sustained flaunting of fundamental Islamic principles reflect his own values, notwithstanding a general adherence to religion. It is manifest that any questioning of him, for whatever reason, did not lead to adverse consequences for him and the Tribunal is not satisfied that he was ever questioned by the authorities because they seriously believed him to be antagonistic to the principles espoused by the government. The applicant's claim to be a refugee rest very substantially upon the alleged incident just prior to his departure from Tunisia. The Tribunal has considered the applicant's claim in that regard and finds them to be far-fetched and implausible."

The RRT continued:

"The Tribunal finds that the applicant did not have a well founded fear of persecution for a Convention reason when he left Tunisia."

The RRT then discusses the issue of why the applicant did not inquire directly as to whether he could be granted asylum in Turkey, Thailand or in Europe. He claimed that he went to seek asylum in Sudan but the Tribunal found it implausible that, in light of his adopted life-style, he would have sought asylum in any country that is renowned for its social and religious stricture. The applicant made deliberate attempts in Thailand to travel to Australia illegally without properly exploring the possibility of gaining protection elsewhere.

The RRT then discussed whether there was evidence to establish the existence of a real chance of persecution of the applicant for a Convention reason and made the following findings:

"1. The removal of books and clothing from the applicant's house in Tunisia does not in all the circumstances signal a real chance of persecution of the applicant; there was no evidence that they were actually removed by the authorities;

2. Even if the applicant were, somehow, perceived to be a supporter of Al-Nahda, notwithstanding his adoption of a an incongruous life-style, the country information indicates that, the prospect of him encountering persecution as a result is remote."

The RRT concludes:

"In considering all the circumstances of this case, including cumulatively, the Tribunal finds that there is not a real chance ... that the applicant would face persecution for any Convention reason if he were now to be returned to his country of origin."

Decision

This Court must in conducting judicial review of administrative decisions be concerned to avoid turning a review of the reasons of the decision-maker into merits review.

The duty of the Court in reviewing administrative action is stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; 185 CLR 259 at 272, by the High Court approving Brennan J in Attorney-General (NSW) v Quin (39):

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

The applicant submitted that the Tribunal based its decision on the existence of particular facts and "those facts did not exist".

These facts were:

(a) A finding that a document produced by the applicant at the hearing was not genuine.

(b) A finding the applicant did not go to or seek asylum in Sudan.

(c) A finding that interrogations by the authorities in Tunisia of the applicant were unrelated to the applicant's political beliefs.

(d) A finding that the applicant did not actively support Al-Nahda or its cause.

(e) Findings that the authorities in Tunisia did not attend his house prior to his departure from Tunisia.

(f) A finding that the applicant would not be at risk or persecution because of political opinion if he returned to Tunisia.

In relation to (a), that is, the finding that a document produced by the applicant at the hearing was not genuine, it is clear from the decision that this finding of genuineness of a document was part of a series of findings of fact in relation to the applicant's support of fundamentalism. The decision-maker dealt with the evidence and his response to the evidence at pages 210 and 215 of the decision. Many of his conclusions are dependent on his assessment of the credit of the applicant.

I agree with the view of Tamberlin J expressed in Navaratne v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal (unreported 1 August 1997 VG 334 of 1996), where he said:

"The credibility of an applicant is largely a matter of impression. There is no reason, in principle, why the observations of the High Court in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179, as to the disadvantage of an appellate body in considering credibility findings should not apply in respect of review applications to this Court under s 476 of the Act. The oft-cited remarks of the Court as to the "subtle influence of demeanour" are especially important in migration cases where many of an applicant's assertions must be accepted at face value in the absence of any evidence to the contrary."

I consider the inferences drawn were clearly open to the Tribunal.

In relations to the other findings of fact, my view is the same. I accept the submissions of the respondent, who has referred to specific parts of the decision in question, that in this case the applicant is seeking the Court to undertake a merits review of the decision of the Tribunal. The applicant also submits that, having come to a view as to the applicant's credibility, the decision-maker is obliged to notify the applicant of such "issues" to give him an opportunity to answer the concerns that he has and failure to do so is a failure to comply with

s 420 of the Act because it is unfair and unjust.

The Full Federal Court has recently considered the operation of s 420 of the Act in Eshetu v Minister for Immigration and Ethnic Affairs and held that a successful challenge could be made to a decision under s 476(1)(a) where there was a failure to observe the requirements of s 420, notwithstanding the provision of s 476(2), which expressly precludes challenges on certain grounds.

I would apply that decision here, in spite of the difficulties I have with its reasoning, if the applicant had successfully made out a contravention of s 420. He has not done so.

The decision-maker has, in my view, no obligation to bring to the attention of the applicant credibility matters before he makes a decision. Credibility is not an "issue" as such, but a conclusion drawn by the decision-maker after having had the opportunity to hear the evidence and assess the witnesses in relation to demeanour and cogency.

It follows that failure to alert the applicant to these conclusions as to credit do not amount to a failure to comply with s 420(1) of the Act.

The final ground of review put by the applicant is that the decision-maker failed to give proper reasons on a number of issues which amounts to failure to comply with s 430(1)(d) of the Act.

The respondent said that, insofar as the complaint in respect of s 430 is founded upon s 476(1)(a) of the Act, it is not a matter which gives rise to a review as

s 476(1)(a) is limited in its scope to procedures in connection with the making of the decision. I am not called upon, in this case, to decide that issue.

I have considered the reasons for decision in this case as a whole and I consider there has been no failure to set out any or any proper reason for findings of fact in relation to the "critical" issues referred to by the applicant.

He considered;

(i) The issue of a visit to the applicant's house on 8 March 1995;

(ii) The issue of the applicant's support of fundamentalism;

(iii) The applicant's support and relationship with Al-Nahda;

(iv) The nature and purpose of interrogations of the applicant;

(v) The status of the Al-Nahda support document;

(vi) The Sudan incident,

in coming to his decision on the issues before him.

At the hearing the applicant, in person, pressed that I should receive in written form explanations of matters considered by the RRT. He also wished to provide "up-to-date" material as to the situation in Tunisia for my consideration. This material was objected to by the respondent. I considered the material and rejected it as being irrelevant to the matter before me for determination.

The application should be dismissed with costs.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated: 3 March 1998

Applicant:	Fathi Kharroubi (Unrepresented)
Counsel for the Respondent:	Rowan M. Downing
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 March 1998
Date of Judgment:	3 March 1998