MZYAY v Minister for Immigration & Anor [2009] FMCA 98 (17 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYAY v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 98

MIGRATION – Review of RRT decision – whether Tribunal misconstrued test and misdirected itself by applying the wrong test – whether Tribunal misled applicant on issue of credit – whether a failure to give procedural fairness – whether a failure to complete jurisdictional task – review application dismissed.

Migration Act 1958 (Cth), ss.91R and 425

Applicants S.134/2002 [2003] HCA 1; (2003) 211 CLR 441 Chan v Minister for Immigration Affairs [1989] HCA 62; (1989) 169 CLR 379 Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 525 Lovo v Minister for Immigration & Multicultural and IA [2003] FCAFC 168; (2003) 132 FCR 93 MAFF of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Plaintiff S.157 v Commonwealth of Australia (2003) 211 CLR 476 S298/2003 v Minister for Immigration & Citizenship [2007] FCA 1793 SDAV v Minister for Immigration & Multicultural and Indigenous Affairs; Minister for Immigration & Multicultural and Indigenous Affairs v SBBK (2003) 1999 ALR 43 SVBG v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 121; (2003) 199 ALR 281, [20] SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZHZF v Minister for Immigration & Citizenship [2007] FCA 1173 SZJYA v Minister for Immigration & Citizenship (2) 2008 FCA 911 Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132

Applicant:

MZYAY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 739 of 2008

Judgment of:

O'Dwyer FM

Hearing date:

23 October 2008

Delivered at:

Melbourne

Delivered on:

17 February 2009

REPRESENTATION

Counsel for the Applicant:

Dr Donoghue

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application filed on 20 June 2008, as amended on 11 August 2008, is dismissed.
(2) The Applicant pay the First Respondent’s costs

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 739 of 2008

MZYAY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an amended application filed on 11 August 2008 the Applicant seeks to review a decision handed down on 23 May 2008 by the Refugee Review Tribunal (the Tribunal), which decision affirmed an early decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

Background

2. The Applicant is a citizen of Ethiopia.
3. He arrived in Australia on 28 February 2007 as the holder of a student visa. On 23 July 2007 he applied for a protection visa. In support of that application he lodged a statutory declaration dated 20 July 2007.
4. In his application and supporting material the Applicant claimed that he, if he was required to return to Ethiopia in the reasonably foreseeable future, faced a real chance of persecution at the hands of the Ethiopian authorities. The basis of his claim was said to be his actual or imputed political opinion, and his Oromo ethnicity.
5. In the history that he provided about the events relevant to his application, he claimed to have become politically involved after he commenced his studies at the Bahidir University in 2001. He then recounted an event that took place outside the Addis Ababa University where students demonstrated against the government, at which demonstration the police arrived and arrested some students, including the Applicant. He claims to have been subjected to “intense exercise” and beaten. This happened over a period of nine days.
6. Again in 2003 while at university he was suspected of being an associate of the Oromo Liberation Front because of his Oromo ethnicity and was excluded from the university because of it.
7. Again on 7 June 2005 he attended a demonstration in support of opposition parties where he was arrested and taken into detention for eight days, during which time he was interrogated and subjected to torture. He was released from that detention after his wealthy father bribed police.
8. After his brother was arrested in 2005 for political activities, he felt the need to make arrangements to leave Ethiopia. Whilst he planned to ultimately travel to the United States of America where his brother was a doctor, it was determined that he should first complete his studies at the RMIT University in Melbourne.
9. In further support of his application the Applicant provided to the Tribunal another statutory declaration on 4 October 2007, and his representative provided a written submission on 5 October 2007.
10. The Applicant attended a hearing over two days on 13 and 22 February 2008.

The Tribunal’s Decision

11. In the Tribunal’s written reasons for decision, under the sub-heading of “The Hearing” the Tribunal stated:
    • The Tribunal indicated to the Applicant that it found his evidence to be credible, however it also finds that his political involvement has been at a very low level and not such as to attract the adverse attention of the authorities, or that he would be persecuted in the future.
12. In the Tribunal’s “Finding and Reasons for Decision” it stated that:
    • The Tribunal finds that the harm feared by the Applicant involved serious harm and systematic and discriminatory conduct, and that the essential and significant reason for the harm claimed to be feared is his political opinion, imputed political opinion and ethnicity against the government in Ethiopia; any or all of which are Convention reasons.
13. Under the same sub-heading the Tribunal articulated what it saw as its task when it said:
    • The Tribunal’s task in the present case is to consider whether the Applicant genuinely fears persecution for the reasons described above, and if so, whether that fear is well founded. This task requires examining the claims that he has raised and the evidence that he has submitted, in addition to relevant independent country information.
14. The Tribunal then proceeded to address the Applicant’s claims and, significantly from the Applicant’s perspective, stated that:
    • The Tribunal has considered the Applicant’s claims of political activity in 2001 and 2005. It has taken into account his written statements and submissions; and his oral evidence. The Tribunal found the Applicant’s evidence generally to be credible, although on reviewing his evidence, it is the Tribunal’s view that he may have enhanced or exaggerated his account of the level of interest in him by the authorities and his claims of detention and torture.
15. The Tribunal accepted that in 2001 the Applicant may have been among nearly 2000 students who were arrested and detained.
    The Tribunal also accepted that the Applicant may have been detained in those arrests occurring after the 2005 elections in Ethiopia and may have been mistreated during any detention at these times.
16. Very significantly, from the perspective of the Applicant, the Tribunal then stated that:

However, none of the evidence he provided indicates that he was personally targeted by the authorities. He does not claim to have been involved at a leader or organiser level; he gave evidence that he was not a member of a political party. As noted, his involvement was very brief and of a superficial degree.

Large numbers of people demonstrated at these events, he happened to be among those who were arrested in the mass arrests. The Tribunal accepts that he suffered serious harm in the past. As he also stated, he was released after a relatively short time and the authorities have had no further interest in him.

17. The Tribunal observed that the Applicant was able to depart Ethiopia through the international airport without incident, and found that was possible “because there was no adverse interest in him by the authorities as he was not of personal interest to them because of any political opinion or activity”.
18. On the question of whether the Applicant might face a real chance of persecution in Ethiopia in the future it concluded that:
    • The Tribunal has found that the Applicant may have been arrested and suffered serious harm in the past, not because he was personally targeted for political opinion or activity. Rather, this was because he happened to be among large numbers of students who became the subject of mass arrests.
19. Then, on the basis of information considered by the Tribunal, the Tribunal found that there was “not a real chance in the reasonably foreseeable future that the Applicant would find himself in a similar circumstance related to similar events he experienced in the past as to be the subject of mass arrest by the authorities and suffer persecution or serious harm”. The country information, relied on by the Tribunal in support of this conclusion, referred to the recent release and pardon of political prisoners in Ethiopia.
20. In respect of the claim that the Applicant faced persecution because of his ethnicity, the Tribunal accepted that the Applicant may have been excluded from the university as a result of it. However, the Tribunal did not accept that such discrimination constituted “serious harm” within the meaning of section 91R of the Migration Act 1958 (the Act). The Tribunal also observed that, a relatively short period of time after being excluded from one university, the Applicant was able to enrol and study at another university within Ethiopia.
21. Having considered all of the Applicant’s claims, individually and cumulatively, the Tribunal found that the Applicant did not face a real chance of persecution in Ethiopia on the grounds of ethnicity, political opinion or imputed political opinion due to his ethnicity in the foreseeable future.

The Grounds for Review

22. By his amended application the Applicant specified three grounds for review. They are that the Tribunal made a jurisdictional error because:
    1. it applied the wrong test when it reasoned that the Applicant did not have a well founded fear of persecution because he was not “personally targeted” by the authorities or involved “at leader or organiser level” of a political party;
    2. it failed to complete its jurisdictional task when it failed to recognise the questions that it was required to consider before it could lawfully conclude that the Applicant did not have a well founded fear of persecution because “there is not a real chance in the reasonably foreseeable future that the Applicant would find himself in a similar circumstance related to similar events he experienced in the past as to be the subject of mass arrest by the authorities and suffer persecution or serious harm”;
    3. it breached the imperative duty imposed by s.425 of the Act when it mislead the Applicant in the course of the hearing by informing him that it found his evidence to be credible, but then found - without any notice to the Applicant - that “he may have enhanced or exaggerated his account of the level of interest in him by authorities and his claims of detention and torture”.
23. Each of the grounds are independent of one another and should one be sustained, then the order sought by the Applicant should be made.

The Contentions

The First Ground

24. In support of the first ground, the Applicant contends that, as a matter of law, and as acknowledged in the summary by the Tribunal of the applicable law, “persecution may be directed against that person as an individual or as a member of a group”. In the Tribunal’s summary it recognised that:
    • 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 based on 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”.
25. These observations and summaries by the Tribunal reflect the judgments of the High Court in Chan v Minister for Immigration Affairs [1989] HCA 62; (1989) 169 CLR 379, 396 and Minister for Immigration & Ethnic Affairs V Guo (1997) 191 CLR 559, 572.
26. The Applicant contends that, notwithstanding the fact the Tribunal gave a proper summary of the applicable principles, it made a series of factual findings that should have led it to conclude that the Applicant had a well founded fear of persecution. In that regard, the Applicant highlights the following findings of fact by the Tribunal:
    1. the harm feared by the Applicant involved serious harm and systematic discriminatory conduct;
    2. the essential and significant reason for the harm feared by the Applicant was his political opinion (his support of the Coalition for Unity and Democracy), imputed political opinion and/or ethnicity, each of these being Convention grounds;
    100. the Applicant may have been amongst students who were rounded up in Addis Ababa in 2001, and again after elections in 2005; and
    4. the Applicant may have been subjected to arbitrary detention and inhumane treatment while being held in detention by the Ethiopian government forces.
27. Yet, despite these findings, the Tribunal decided that the Applicant did not have a well founded fear of persecution because “none of the evidence he provided indicates that he was personally targeted by the authorities”, and because he “does not claim to have been involved at a leader or an organiser level”.
28. The Applicant contended that by reasoning in that way the Tribunal added an impermissible gloss to the definition in Article 1A of the Refugees Convention. The Applicant contended that the definition does not confine the concept of refugee to those who are “personally targeted” by authorities, or who are political leaders. It is enough, the Applicant contended, if an Applicant has a characteristic of a kind that there is a real chance that it may attract persecution in the future for a Convention reason, even if that persecution is entirely opportunistic and not a response to “targeting”. It is not necessary to show that the Applicant is a leading exponent or a prominent activist. (See Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 at [20 per Madgwick]; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 525 at [16 per Madgwick J]).
29. The Applicant contended that if there is a real chance that Ethiopian authorities will arrest and mistreat people who attend political rallies, then it is no answer to that risk to say that the attendees at such rallies are not persecuted because they are not “targeted by authorities”. Nor is it an answer to say that most such people will be released after a period of time, as was a finding in this case.
30. In developing this contention the Applicant states that if there is a real risk that serious harm will result (of the kind that the Tribunal in fact accepted as having occurred) from attending such a rally, then if there is a real chance that a person will attend a political rally, that person has a well founded fear of persecution, irrespective of whether he has been targeted or whether he is “involved at a leader or organiser level”, or whether he is likely to be released shortly after such harm occurs.
31. The Applicant highlights the case of Chan in support of his contention that persecution need not be directed against a person as an individual, but can occur because a person is part of a persecuted group, rather than because authorities have a specific interest in an individual.
32. In the case of Ethiopia, the information that was accepted by the Tribunal clearly demonstrated that people who attended political rallies may be subjected to serious harm on account of their political opinions, whether or not they were personally targeted by the authorities.
    The arrests of 2000 students, it was contended, following one of the rallies that the Applicant attended clearly demonstrated that fact.
33. The Applicant contended that there was no proper basis upon which the Tribunal could add to the definition in Article 1A of the Convention a requirement that the Applicant feared persecution because he was targeted directly. To illustrate the impropriety of such an attempt, the Applicant made reference to Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293, 304, where the High Court disapproved of the suggestion that the conduct could amount to persecution only if it was motivated by “enmity” or “malignity”.
    In that case the majority held at [33] that:
    • “Where discriminatory conduct is motivated by ‘enmity’ or ‘malignity’ towards people of a particular race, or religion, nationality, political opinion or people of a particular social group, that will usually facilitate its identification as persecution for a Convention reason. But that does not mean that, in the absence of ‘enmity’ or ‘malignity’, that conduct does not amount to persecution for a Convention reason. It is enough that the reason for the persecution is found in one or more of the five attributes listed in the Convention”.
34. In conclusion, on this ground, the Applicant contended that if there is a real chance that serious harm will result from attendance at political demonstrations in Ethiopia, a person, such as the Applicant, who wishes to attend such demonstrations as an expression of his political opinion, has a well founded fear of persecution. Having regard to the Tribunal’s finding of fact, therefore, the Applicant should have been recognised as a refugee. By applying the wrong test when identifying a well founded fear of persecution, the Applicant contended, the Tribunal misconstrued the criteria that govern the grant of a protection visa, which, should that have happened, is a well recognised jurisdictional error. (See re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Applicants S.134/2002 [2003] HCA 1; (2003) 211 CLR 441, [32], [83]; Plaintiff S.157 v Commonwealth of Australia (2003) 211 CLR 476; Lovo v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93, [42 - 65]; SDAV v Minister for Immigration & Multicultural and Indigenous Affairs ; Minister for Immigration & Multicultural and Indigenous Affairs v SBBK (2003) 1999 ALR 43, [46 - 47]; SVBG v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 121; (2003) 199 ALR 281, [20].
35. In response to the Applicant’s contentions on this point, the First Respondent says that the findings of the Tribunal upon which the Applicant has based his contentions are findings of events and circumstances that happened to the Applicant in the past. Emphasis is placed on the fact that events were recorded by the Tribunal as past events, but were recorded as such to determine what the future held in relation to the real chance of the Applicant suffering persecution should he return to Ethiopia.
36. The First Respondent does not resile, as I understand the First Respondent’s contention, from those findings and assessments by the Tribunal about the past, but says that a fair reading of the Tribunal’s decision necessarily draws the conclusion that those findings of fact were made to assist the Tribunal in assessing what the future holds by way of persecution of the Applicant. Significantly, the past events when taken together with country information, not unreasonably led the Tribunal, the First Respondent contended, to the conclusion that in the future there was not a likelihood of the Applicant experiencing harm.
37. The Tribunal found that the Applicant did not have a profile with the Ethiopian authorities and would not therefore face a real chance of being personally targeted by them in the future. This reasoning, it is fair to say, was directed to the Applicant’s claim that, merely by virtue of his past activity and arrest, he might face harm from the authorities in the future.
38. The Tribunal considered the claims which had been made by the Applicant about the serious harm suffered in the past and considered whether or not there was a real chance that such circumstances might arise again in the future. Accordingly, the Tribunal considered whether or not there was a real chance that, despite the absence of any profile on the part of the Applicant, should he undertake similar low level political activity in the future, as he had done in the past, and get caught up in mass arrests, would he suffer serious harm in the future.
39. The Tribunal was entitled to accept the veracity of recent country information and find that there had been a change in the political climate in Ethiopia such that, in the reasonably foreseeable future, there was little prospect of mass arrests and subsequent serious harm similar to that which affected the Applicant in 2001 and 2005. Such a finding, in my view, was open to the Tribunal.
40. It is fair to say that the Tribunal did not analyse the Applicant’s claims only through the prism of his profile with the Ethiopian authorities. The Tribunal separately addressed the likelihood of the Applicant being caught up in mass arrests in the future. The Tribunal was clearly cognisant that, irrespective of what profile the Applicant had, he could nonetheless potentially face a real chance of persecution in the future if the circumstances in Ethiopia were to remain the same as they had been in 2001 and 2005. However, in my view, it is apparent that the Tribunal found that, on the basis of the recent country information, the circumstances in Ethiopia had changed. On this basis, the Tribunal was satisfied that, in the future, the Applicant did not face a real chance of experiencing the same kind of serious harm which he had experienced in the past.
41. In my view, the Tribunal’s reasoning in this regard discloses no misconstruction or misapplication of the tests set out in the Convention. Accordingly, this ground is not sustained.

The second ground

42. In respect of the second ground, where the Applicant alleges that the Tribunal failed to complete its jurisdictional task, the Applicant contended that the conclusion reached in the following passage from the decision is unsound for two reasons. That passage is:
    • The Tribunal finds that there is not a real chance in the reasonably foreseeable future that the Applicant would find himself in a similar circumstance related to similar offence he experienced in the past as to be the subject of mass arrest by the authorities and suffer persecution or serious harm.
43. The first reason propounded was that the conclusion quoted above is premised on the fact that the Applicant “was not personally targeted for political opinion or activity”. For the reasons set out above, I am not persuaded that the Applicant’s premise is correct.
44. The second reason propounded was that the Tribunal did not complete the process of decision making that was necessary before it could lawfully make the finding quoted. That follows, it was said, because, as a matter of logic, the Tribunal could only have reached that finding if it first found that either:
    1. there is no longer a real chance of mass arrests and mistreatment of detainees occurring at political demonstrations in Ethiopia; or
    2. there was not a real chance that the Applicant would attend political demonstrations if he returned to Ethiopia (despite the fact the Tribunal accepted he had attended such demonstrations in the past).
45. Because the Tribunal did not expressly make either of these findings, it was contended that the Tribunal had not completed the reasoning that was required for it to lawfully reach the conclusion it did. In other words, it failed to complete its jurisdictional task, which is a recognised form of jurisdictional error (see MAFF of 2002 v Minister for Immigration & Multicultural And Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1).
46. The Applicant further contended that neither of the above findings could be implied because a necessary element for either, express or implied, is evidence upon which such findings can be based.
    The Applicant contended that no such evidence was before the Tribunal.
47. The Applicant having established the premise upon which the contentions in this regard were based; namely the two necessary findings as set out above, he went on to illustrate how there was no evidence of such findings being made, nor any evidence upon which such findings could be made.
48. In response, the First Respondent does not join issue with the Applicant in relation to his contentions based upon the second of the above alleged necessary findings, and simply says that consideration is irrelevant because a fair reading of the Tribunal’s decision would find that the second alleged necessary finding did not form part of the Tribunal’s reasoning. The Tribunal did not make or rely upon any finding that the Applicant would not attend demonstrations in the future. In respect of the alleged first necessary finding, the First Respondent refers to and relies upon a fair reading of the Tribunal’s decision which discloses the Tribunal coming to a conclusion to the effect that the political climate in Ethiopia had changed since the Applicant had been arrested in 2001 and 2005. The consideration of such was necessary in order to determine whether there was a real chance that, in Ethiopia in the reasonably foreseeable future, the Applicant might get caught up in mass arrests and suffer serious harm.
49. In considering whether or not the political climate in Ethiopia had changed, the Tribunal had regard to recent country information.
    That country information referred to the release and pardon of the political prisoners in Ethiopia. Those released and pardoned included people who had been detained after the 2005 elections.
50. Although the Applicant asserts that there was no evidence to support the finding made by the Tribunal that the Applicant did not face a real chance of getting caught up in mass arrests in the reasonably foreseeable future, the recent country information to which the Tribunal had regard was at least some evidence upon which its findings could have been based. In order for the Applicant to make good this ground for review, he must establish, in my view, that there was no evidence at all by which the Tribunal could make such a finding. (See SZHZF v Minister for Immigration & Citizenship [2007] FCA 1173 at [33]). In my view, the recent country information was at least some evidence in support of its finding that there was not a real chance that, in the reasonably foreseeable future, the Applicant would find himself in similar circumstances to those which he had experienced in the past. There was evidence that the attitude of the Ethiopian government to its political opponents had softened. This evidence could and did support a finding that, in the reasonably foreseeable future, the Ethiopian government would not engage in mass arrest, detention and mistreatment of demonstrators. (See also Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 257).
51. The Applicant’s challenge in this regard goes, in my view, to the merits of the Tribunal’s fact finding. The Applicant, in effect, asked this Court to review the evidence before the Tribunal and reach a view about its probative value. As stated, there is evidence upon which the Tribunal could have formed the view that the political climate in Ethiopia had changed and as a consequence, in the reasonably foreseeable future, the Applicant would not find himself in similar circumstances to those he experienced in 2001 and 2005.
52. In my view, the second ground is not sustained.

The third ground

53. The third and final ground of review concerns an allegation that the Tribunal mislead the Applicant and in so doing breached its obligations imposed by S.425 of the Act.
54. In that regard the Applicant makes reference to the Tribunal’s reference in its decision to the fact that it “found his evidence to be credible”. However, notwithstanding that indication, the Tribunal in its “findings and reasons” stated that, while the Applicant’s evidence was “generally credible ... it is the Tribunal’s view that he may have enhanced or exaggerated his account of the level of interest in him by the authorities and his claims of detention and torture”.
55. The Applicant asserts that by that observation the Tribunal could create a real doubt as to the extent to which it in fact accepted the evidence that lay at the heart of the Applicant’s claim for protection.
56. The Applicant then in written and oral submissions went to some length to highlight the authorities that supported the proposition that where a party was mislead as to the Tribunal’s acceptance of that party’s credibility but later determined the issue of credibility adversely to that party, then manifestly there was a denial of a natural justice, and a breach of statutory imperatives imposed by s. 425. These authorities refer to the misleading feedback given to a party by a Tribunal during the hearing.
57. In response, the First Respondent, in effect, contends, for the reasons set out below, that the Tribunal, although expressing some doubt about the Applicant’s evidence, nonetheless accepted it for the purposes of the decision and that this ground is therefore unsustainable.
58. In its decision, the Tribunal recorded that, at the conclusion of the Applicant’s oral evidence given at the hearing:
    • The Tribunal indicated to the Applicant that it found his evidence to be credible, however it also finds that his political involvement has been at a very low level and not so much as to attract the adverse attention of the authorities, or that he would be persecuted in the future.
59. At the hearing, the Tribunal informed the Applicant that, while it regarded his evidence as credible, it considered his past activity relatively minor and not of a kind that would give rise to any profile with the Ethiopian authorities.
60. In its reasons for decision, the Tribunal stated that:
    • The Tribunal has considered the Applicant’s claims for political activity in 2001 and 2005. it has taken into account his written statements and submissions; and his oral evidence. The Tribunal found the Applicant’s evidence genuinely to be credible, although on reviewing his evidence, it is the Tribunal’s view that he may have enhanced or exaggerated his account of the level of interest in him by the authorities and his claims of detention and torture.
61. The Tribunal then proceeded to address the Applicant’s claims of past persecution arising out of arrest and detention in 2001 and 2005.
    The Tribunal accepted that the Applicant may have been arrested and detained; and while detained, seriously harmed.
62. In my view, it is therefore clear that, whatever doubts the Tribunal may have had about the credibility of some aspects of the Applicant’s evidence, the Tribunal was prepared to put those doubts to one side when it addressed, and accepted, the Applicant’s claims. Any doubts held by the Tribunal played no part in the Tribunal’s reasoning process.
63. Importantly, the Tribunal stated that the Applicant “may” have enhanced or exaggerated his account. It did not make any findings that the Applicant had done so. Having regard to the Tribunal’s acceptance of the Applicant’s claim of detention and mistreatment in 2001 and 2005, it is clear that the Tribunal gave the Applicant the benefit of the doubt and proceeded upon the basis that he had not enhanced or exaggerated his account.
64. The Applicant refers to and relies upon the High Court’s decision in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. In SZBEL, Gleeson CJ, Kirby, Haines, Callaghan and Heydon JJ delivered a joint judgment in which the obligations imposed by section 425 of the Act were considered. At [35] of the joint judgment, their Honours stated that:
    • The Tribunal is not confined to whatever may have been the issues that the delegate considers. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the Applicant what that other issue is, the Applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision and the review would be those which the original decision maker identified as determinative against the Applicant.
65. In the present case, the Applicant now complains that, when giving evidence and presenting arguments at the hearing, he was unaware that the credibility of his claims might be one of “the issues arising in relation to the decision under review”. However, an examination of the delegate’s decision makes it plain that the credibility of the Applicant’s claims was an issue arising in relation to that decision.
66. In her decision, the delegate referred to the Applicant’s lack of basic knowledge about political matters in Ethiopia. The delegate also found it “difficult to believe” the Applicant’s explanation for his confusion about dates. The delegate also found that an explanation given by the Applicant in respect of another discrepancy in his evidence was not plausible. The delegate also raised concerns about the weight which she could give an item of documentary evidence lodged by the Applicant.
67. As a result of the delegate’s decision, the Applicant was plainly on notice that credibility might be an issue at the time of giving evidence and presenting arguments at the hearing.
68. Furthermore, the Applicant attended the hearing which ran over the course of two days. At the hearing, he had ample opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
69. Having regard to the Tribunal’s description in it’s decision of events at the hearing, it would appear that, after the Applicant had concluded giving his oral evidence, the Tribunal informed him that it found his evidence to be credible but, insofar as it related to him having a political profile, weak. At the time of the Tribunal making this statement, the Applicant had concluded giving his oral evidence.
70. The Applicant also refers to and relies upon the decision of Rares J in SZJYA v Minister for Immigration & Citizenship (2) [2008] FCA 911 and the decision of Lander J in Applicant S298/2003 v Minister for Immigration & Citizenship [2007] FCA 1793. However, the factual circumstances in those cases are far removed from those in the present case.
71. In SZJYA, the delegate had accepted that the Applicant had an association with the local church in China before she arrived in Australia. However, in its decision, the Tribunal found that the Applicant had fabricated her association with the local church “by attending meetings in Australia and gaining her knowledge of Christian beliefs and practises solely in the short period in which she was in this country”. In his decision Rares J held that the Tribunal “dealt with an issue which was not before the delegate concerning the genuineness of the Applicant’s beliefs and current practising”.
72. In S298/2003, the Tribunal informed the Applicant that it was unnecessary for him to tender an original version of a document. However, in its decision, the Tribunal relied upon the Applicant’s failure to tender the original version to form an adverse assessment about the documents.
73. The circumstances of these cases are starkly at odds with those of the present case.
74. There is no proper basis, in my view, for any suggestion that the Applicant was somehow denied a fair hearing. As observed above, whatever doubts the Tribunal might have had about the credibility of some aspects of the Applicant’s evidence, the Tribunal was prepared to put to one side when it addressed, and accepted the Applicant’s claims. Any such doubts were not “an issue” relevant to the Tribunal’s decision.
75. The Tribunal’s comment about the credibility of aspects of the Applicant’s evidence was not a matter which the Tribunal considered to be important to its decision. So much is evident from the Tribunal’s reasons. Nor did it ultimately lead to any doubts about specific aspects of the Applicant’s account.
76. The Tribunal accepted the specific aspects of the Applicant’s account of past events insofar as they related to arrest, detention and serious harm. The Tribunal did not, however, accept that the Applicant faced a real chance of serious harm in the future. Its reasons for reaching this conclusion rested on the Applicant’s own evidence about his lack of political profile and also on country information about the present political climate in Ethiopia. These reasons did not involve any adverse assessment of the Applicant’s credibility. Moreover, these reasons largely follow the reasoning process adopted by the delegate. In the circumstances, the principles discussed in SZBEL, SZJYA and S298/2003 do not apply.
77. For the above reasons, in my view, it cannot be said that the Tribunal failed to comply with s.425.
78. In addition, the Tribunal’s assessment of the likelihood of the Applicant experiencing future harm rested on its consideration of country information about recent developments in Ethiopia. Again, any concerns about the credibility of aspects of the Applicant’s claims were not relevant to the Tribunal’s assessment of this country information.

Conclusion

79. For all of the above reasons, the Applicant has failed to establish a ground for review and the application filed on 20 June 2008, as amended on 11 August 2008, must be dismissed. There will be an order to that effect, plus an order for costs.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

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