S v Minister for Immigration & Multicultural Affairs [1998] FCA 411

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal - no point of general principle Migration Act 1958 (Cth): s 476(1)(e) S v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1054 of 1997

MADGWICK J SYDNEY

23 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1054 of 1997

BETWEEN: S

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE(S): MADGWICK J

DATE OF ORDER: 23 MARCH 1998

WHERE MADE: SYDNEY

SHORT MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1054 of 1997

BETWEEN: S

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE(S): MADGWICK J

DATE: 23 MARCH 1998

PLACE: SYDNEY

EX-TEMPORE REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: This is an application to review a decision of the Refugee Review Tribunal constituted by Ms Mathlin. The question at issue is whether the Tribunal erred in not disturbing a decision of the delegate of the Minister to refuse to grant the applicant a protection visa. The Tribunal member directed herself to the relevant article of the relevant Convention and continued: "In order to be satisfied that the Applicant meets the definition of a refugee, I must be satisfied, firstly, that there is a 'real substantial basis' for his fear of persecution on return to Lebanon. Such a basis may exist notwithstanding that 'there is far less than a 50 per cent chance that the object of the fear will eventuate' - but the evidence must indicate a 'real ground' rather than mere assumption or speculation that the applicant is at risk of persecution: see MIEA v Guo & Anor (unreported) 13 June 1997. . ." The Tribunal member continued: "In the earlier leading case of Chan Yi Kin v the Minister for Immigration & Ethnic Affairs (1989) 169 CLR at 389, the Court found that a fear of persecution would be well founded if there was 'a real chance', being one that is not remote or insubstantial, or a far fetched possibility, that the applicant would face Convention persecution: per Mason CJ at 378 and per McHugh J at 429." The applicant's account was that he was a Lebanese Christian who had fought with the Southern Lebanese Army ("SLA") from 1988 to 1990 against both Hezbollah forces and those of the Government of Lebanon itself which, of course, held power somewhat tenuously and depended upon Syrian reinforcement. The applicant claimed to the Tribunal that, after his time with the SLA, fighting just north of the border with Israel, he had come home to Beirut in 1990. He had not suggested that he had any problems related to his membership of the SLA in 1988 to 1990 and the Tribunal member concluded that when he left Lebanon in August 1995, the authorities were not aware of his earlier activities as an SLA soldier. The Tribunal member further found as a fact that: "there is no real chance that the Applicant would face persecution now or in the foreseeable future as a consequence of his past involvement with the SLA, given the period of five years that he remained in Lebanon during which time he experienced no such consequences." (emphasis added) The Tribunal member also noted that the applicant had not sought to argue that: "his past membership during 1988 to 1990 would, on his return cause him any problems, and there is no credible evidence before the Tribunal to support a finding that the Applicant would in future face persecution for this reason." It is well established that, in considering reasons expressed by members of a Tribunal, it is appropriate that the Court take a reasonably generous approach to the interpretation of what the Tribunal member has written and that the Court should not, in an apt word first used by Kirby P (as he then was) and later approved by Gummow J, take a pernickety approach. Mr O'Brien, counsel for the applicant, submits that the Tribunal incorrectly applied the law to the facts within the meaning of s 476(1)(e) of the Migration Act 1958 (Cth) so as to call for the Court's intervention. The argument is that the Tribunal member accepted (1) that the applicant had in fact been a fighter for the SLA in 1988 to 1990; and (2) that "very serious consequences", even possibly including exposure to the death penalty, might attend the conduct if it were discovered. Therefore, it was said, a conclusion that he qualified as a refugee ought to have been made. The applicant made an elaborate claim of having spied for the SLA, first in a low-key way after leaving the front in South Lebanon and having returned to Beirut, but then from 1993 to 1995, more particularly and intensively. His claim was that he was sent to work in a shoe factory in West Beirut operated by organs of the Hezbollah movement concerned to provide rehabilitation for wounded Hezbollah fighters and that it was customary for Hezbollah guerillas to work at the factory, presumably between, but certainly soon after, sorties which they had undertaken. His account was that these guerillas, believing that they were among friends, would speak indiscreetly about the details of past military action and that, by eliciting this information and passing it across to SLA leaders (he said via CB radio, a fact which, taken alone, I should have thought, though it is none of my business, would go far to compel disbelief), the SLA would be assisted. The Tribunal member considered this claim carefully and for reasons which, if I may say so, were well argued, rejected this claim entirely. Mr O'Brien rightly makes the point that the applicant, if a genuine refugee, would not be the first or the last one in desperation to include exaggerated and untrue material in order to bolster true and sufficient material. However, the Tribunal member did not fail to consider the logical possibility that those facts which she did accept could establish the applicant's claim, even though he had not in terms relied upon such a claim. It is clear from the material to which I have referred that she rejected the claim because she felt that it was remote, insubstantial or far fetched. There was material before her from which she might have so concluded. That material included the fact that the applicant had had no trouble on account of his military activities and that he chose to rely on an elaborate account of subsequent spying which was ultimately rejected as untruthful. It seems to me therefore that the applicant's complaints entirely relate to questions of fact which it is not the task or entitlement of this Court to review. In these circumstances, it seems to me that the application for review must fail and the application will be dismissed. The applicant is to pay the respondent's costs of the application. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate: Dated: 23 March 1998 Counsel for the Applicant: A O'Brien

Solicitor for the Applicant: Corby Levingston

Counsel for the Respondent: R Henderson

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 23 March 1998

Date of Judgment: 23 March 1998