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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa.

MBE v Minister for Immigration [2004] FMCA 704 (6 October 2004)

MBE v Minister for Immigration [2004] FMCA 704 (6 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MBE v MINISTER FOR IMMIGRATION
[2004] FMCA 704




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa.




Migration Act 1958 (Cth), s.474

Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14

Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157

Dehgany v Minister for Immigration & Multicultural Affairs [2001] FCA 948

Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Paramanathan v Minister for Immigration and Multicultural Affairs [1998] 94 FCR 28

Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407

Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] 90 FCR 287

WAGR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 6

Warnakulausuriya v Minister for Immigration & Multicultural Affairs [1998] FCA 336

Yarlagadda v Minister for Immigration & Multicultural Affairs [2001] FCA 215


Applicant:
MBE




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 925 of 2004




Delivered on:


6 October 2004




Delivered at:


Melbourne




Hearing date:


6 October 2004




Judgment of:


Riethmuller FM




REPRESENTATION

Counsel for the Applicant:


Ms Mortimer (Ms Robertson)




Solicitors for the Applicant:


Cope Thornton




Counsel for the Respondent:


Mr Mosley




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The Applicant's name be replaced with the pseudonym MBE.

(2) The Applicant's application filed 21 May 2004 be dismissed.

(3) The Applicant do pay the Respondent's costs fixed in the sum of $6,500.00

.FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 925 of 2004

MBE



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant seeks a review of a decision by the Refugee Review Tribunal (`the RRT') made on 27 April 2004.

2. The application was commenced in the Federal Court of Australia on 21 May 2004.

3. The application seeks orders that the decision of the RRT be set aside and that the matter be remitted to the RRT to determine with accordance with the law.

4. The grounds of the application are set out as follows:

1. That the Tribunal made jurisdictional errors by:

(a) Failing to accord the applicant procedural fairness;

(b) Considering matters it wasn't entitled to consider;

(c) Failing to consider relevant matters;

(d) Decision induced or affected by fraud or actual bias.

5. The application was heard by me on 6 October 2004.

6. At the conclusion of the hearing the parties were asked whether there was a need for me to make a determination urgently as I was mindful that the applicant was in detention. The parties requested that I make orders in accordance with my views and provide reasons in due course. I therefore made the orders that flow from my reasons in this matter and have delivered my reasons subsequently.

7. The applicant in this case is a citizen of Ethiopia. He was 28 years of age when he arrived in Australia in July 2003. The applicant arrived in Australia on a ship called the `MV Nena'. He was a stow away on the ship, having boarded the vessel in Sudan. When discovered on board the ship he was interviewed by an officer of the vessel who appeared at the time to be acting as the Ship's Master. A record of that interview was provided to the respondent and subsequently relied upon in the decision of the RRT.

8. The applicant's case before the RRT was that by reason of his political opinion or an imputation of political opinion to him by the Ethiopian Government he feared persecution. The political opinion or imputation thereof arose from his claim that he had engaged in activities with the Ethiopian Democratic Party (`the EDP') by attending meetings and distributing pamphlets. The applicant claimed that these activities lead to him being arrested, detained and tortured by the authorities in Ethiopia and that he escaped from that detention and fled.

9. On 12 January 2004 the Minister's delegate rejected the applicant's claims for a protection visa. On 14 January 2004 the applicant's sought a review of the delegates decision by the RRT. The applicant and his advisers made several submissions and placed the material before the RRT. A hearing was held by the RRT which the applicant attended by video conference on April 2004. On 27 April 2004 the RRT found the delegates decision.

10. On 21 May 2004 the applicant applied for a review in the Federal Court, which application was remitted to this Court for hearing and determination.

11. At the hearing of the matter the applicant pursued argument with respect to only three areas:

a) the evidence relating to the applicant's scarring;

b) the evidence related to the ship board account allegedly given by the applicant; and

c) lack of probative material to support the findings of fact.

12. The last matter arose from submissions made by the applicant with respect to the way in which the RRT dealt with his allegation that he had escaped from jail. The applicant did not pursue any of the grounds set out in his application to the extent that they did fall within these three general areas.

13. It is appropriate that I deal with each of these matters separately.

The evidence relating to scarring

14. At page 7 of the decision the RRT member stated:

The adviser noted that the applicant had scars, which he claimed he had received when hit with a rifle butt and beaten with an electric whip (photos of scars attached).

15. Latter in the decision (at page 18) the RRT member stated:

The applicant's scars are weak as evidence for his claims to have been tortured. The Tribunal gives them little weight.

16. The argument for the applicant is that:

This court can take judicial notice of the fact that scars on a persons body are a presentation of a physical evidence that a person has been tortured. Whether those scars can be attributed to a cause other than the one attested to by an applicant is a matter for the Tribunal to determine on the evidence before it.

17. In this case there was no medical evidence to show what conclusions would necessarily or reasonably flow from the scars on the applicant.

18. It does not follow that the presence of the scars on the applicant, without more, necessarily leads to a conclusion that the applicant has been tortured. Nor do scars require that the RRT must make a finding as to how the applicant suffered the scarring, if the RRT does not accept that it was suffered as a result of torture. It is not illogical for the applicant to have had scars upon his body and not been tortured. Scarring can occur for a large variety of reasons, and commonly does occur as a result of accidental injury. The law on this is clear: see Dehgany v Minister for Immigration & Multicultural Affairs [2001] FCA 948 where Justice Carr said at 15:

...Given the Tribunal's finding that the injuries had not been sustained in the manner claimed, the determination of precisely how they had in fact been sustained became, in my view, "logically irrelevant" in the sense explained by Gleeson CJ and McHugh J in Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at par 85.

19. Further support for this proposition flows from WAGR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 6 at 12:

As to the first ground, we note that Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 and the High Court cases there discussed (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Abebe v The Commonwealth (1999) 197 CLR 510) are concerned with situations in which the decision-maker is uncertain as to past events which are relevant to whether a visa applicant has a well-founded fear of a possible future event, namely the applicant's persecution. In such circumstances decision-makers should take into account the possibility that the past events occurred in assessing whether there is a well-founded fear. However, no occasion for this approach arises where there is no uncertainty in the mind of the decision-maker. Nor should uncertainty be attributed to a decision-maker where no lack of certainty appears from the reasons for decision. The cases where relevant uncertainty may be found are likely to be cases where the facts are inherently difficult to ascertain such as whether persons with a known and certain background have been persecuted on return to their country of origin. Wu Shan Liang and Guo are examples. The applicant in Abebe failed unanimously in the High Court where her principal claim was that she had been imprisoned and assaulted in Ethiopia by government officials for political and racial reasons. The Tribunal having rejected the applicant's claimed arrest, `her further claims of detention and rape became logically irrelevant' (at 545, at par [85]). Nor, having found that the applicant was not credible, was the Tribunal required `to determine whether there was a real chance that she had been arrested as she claimed' (at 545, at par [85]).

20. For a large variety of reasons, set out by the RRT member on pages 17 and 18 of the decision, she did not accept the evidence of the applicant with respect to his membership of a political party, nor that he was jailed for torture. She then dealt with the evidence relating to scarring upon his body stating that it was weak evidence and she gave it little weight. A fair reading of the RRT member's reasons is to the effect that when determining whether or not she accepted the applicant's evidence she had regard to the scarring, but did not find that evidence was strongly in favour of the applicant, although certainly not inconsistent with his claims. The absence of scarring may well have been strong evidence against the applicant, in the sense that one would expect some manifestations of injury as a result of the torture alleged. However, the existence of injuries which are not necessarily the result of any particular conduct does not result in a logically compelling conclusion that the torture, as alleged, has occurred.

21. In this regard I am also mindful of the comments by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 where Brennan CJ, Toohey, McHugh and Gummo JJ said:

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.

22. Indeed, in Yarlagadda v Minister for Immigration & Multicultural Affairs [2001] FCA 215 Hely J dealt with a case where the RRT failed to make any mention of scarring on an applicants legs and hands said to be the result of an assault by police during interrogation. His Honour said:

There is no reference in RRT's decision to scars on the legs and hands of the applicant. Nor is there anything to which my attention was directed in the relevant documents which bears upon that topic. The solicitor for the applicant, Mr Krishnar, said that information in relation to this matter was "in the tapes", but he did not seek to put the tapes or any transcription of them before me. Nor did he provide any response to my question as to how, in those circumstances, I could take cognisance of that material allegedly put before RRT upon that topic, when the evidence did not establish what that material was. In any event, RRT did not accept that the applicant was tortured in any way by police, and it did not accept her claim that she was continually harassed by the police. If there are any scars on the legs or hands of the applicant, RRT has at least implicitly rejected any contention that they resulted for assaults by the police during interrogation.

23. Put simply, the presence of scarring does not necessarily prove that torture took place. In this case the RRT, for a variety of reasons set out in the decision, have rejected the applicants evidence with respect to the allegations of torture. I find no error in the RRT's reasoning process which would be reviewable in this regard.

Ship board account

24. One of the items of evidence relied upon by the RRT in determining this matter was an account given by the applicant to the Chief Officer of the ship on which he was a stow away (the Chief Officer acting as Master of the vessel of the time).

25. The RRT recounted, in summary, the evidence obtained from the Ship Master's Report at pages 4 and 5 of their decision. The RRT said:

The Department obtained the ship's master's report, which provided the following information said to reflect information the applicant had given to the crew, on being discovered aboard the ship: the applicant was an Orthodox Christian born in Addis Ababa in 1975. His last occupation was solider of the Ethiopian army. He was single. He had an Ethiopian driver's license on him in someone else's name, (a friend with whom he had illegally entered Djibouti). He had spent about 5 months in Sudan where he boarded the ship that came to Australia. He had deserted from the Ethiopian army and had problems with Ethiopian laws. The applicant was helped board the boat by stevedores (compare this with the interview with the Department, where he said he had no help).

26. The applicant advised the RRT that he had never served in the Ethiopian army nor had he ever been required to and that therefore he was not arrested for being a deserter and that what was said in the notes from the ship's officer was incorrect. The significance of this evidence upon the applicant's credibility was apparent to his advisers at the time, as is recounted at page 7 of the RRT decision:

On 25 March the Tribunal received a submission from the applicant's advisers, to which was attached a further statement by the applicant. To it was attached a further statement by the applicant. The advisers noted that DIMIA in the end accepted that the applicant did not serve in the Ethiopian Army. The adviser remained concerned that this issue could continue to affect the applicant's credibility, and so cited material on conscription and military service in Ethiopia. The adviser argued that the ship's record was weak as evidence for the applicant having deserted the army. There was, the adviser argued, no inconsistency in the applicant's own claims and evidence. Even if the applicant was disbelieved on this issue, it was not a serious credibility issue regarding his core claims.

27. The RRT member again referred to this evidence on page 13 where she said:

The applicant confirmed he had been in Djibouti for about a year and in Sudan for about half a year before coming to Australia. He said that in Ethiopia he was a taxi driver. The Tribunal asked the applicant why the ship master's records of information supplied by the applicant during discussions with the crew indicated that he had told them his last occupation was solder of the Ethiopian army. The applicant denied ever having said that. The Tribunal asked the applicant how it could be explained that the ship master's record said as it did. The applicant said he did not know. They were trying very hard to send him home. The Tribunal said it supposed the ship master did want to get the applicant off the ship, but that did not explain why they would have falsely said that he was with the Ethiopian army. The applicant said he was also surprised.

28. As a result, when explaining why she did not accept that the applicant was jailed and tortured the RRT member relied, in part, upon the account from the ship's officer, stating at page 18:

Third, the applicant gave information to the crew of the ship on which he stowed away, that his last job was as a soldier in the army, and he was absent without leave. The Tribunal is not persuaded by the argument that the ship's crew invented this information. The applicant it seems provided this information in the context of discussions about why he was on the ship and did not want to return to Ethiopia. (The Tribunal does not accept the applicant's assertion that there was no discussion of his reasons for leaving Ethiopia.) If the applicant was fleeing political persecution as an EDP member, he would have said so in this context. (The Tribunal is not making a finding that the applicant was conscripted into the army. The Tribunal is not even making a finding that the applicant was a volunteer in the army. The Tribunal's finding is that the applicant did change his account of why he left Ethiopia and why he had problems with the authorities, which reinforces the Tribunal's finding that the latter account has been fabricated).

29. The argument put forward by the applicant's Counsel in this regard was that a number of conclusions should follow from the RRT's finding on this issue. First, it is said that as a result of the RRT rejecting the applicant's version of events given to the respondent, in part in reliance upon the previous inconsistent version the applicant gave to the ship's crew, the RRT has inferentially accepted the version of events (that the applicant was a deserter from the army) recounted to the ship's crew. Thus, it is argued that the RRT failed to take into account relevant information and failed to make a decision about a material aspect of the case (whether the applicant was a deserter from the Ethiopian armed forces and therefore at real risk of persecution).

30. At no stage was it ever the applicant's case before the RRT that he was a deserter from the Ethiopian armed forces. This was an issue known to the applicant and his adviser well before the RRT's decision, and at no stage did the applicant adopt that version of events as a basis for seeking a protection visa.

31. It is apparent that the previous inconsistent statement, whilst being relevant evidence to be relied upon in determining whether or not the applicant's current version of events was credible, does not necessarily have to be accepted as truthful. That is, the mere fact that the applicant has give two different versions (as accepted by the RRT) is sufficient to seriously damage his credibility, and provide sufficient foundation for the RRT's finding that they did not accept his version, as a matter of credit (indeed there was a large number of other factors that the RRT also relied upon on the issue of credit, as recounted at pages 17 and 18 of the decision). To the extent that the argument for the applicant requires a conclusion that the applicant's previous inconsistent version must have been accepted as the truth by the RRT, this argument is simply wrong in logic and is not the finding of the RRT in any event. Indeed it would be exceedingly difficult for a tribunal to have accepted that this previous inconsistent account was in fact truthful, in light of the continued insistence at the hearing and in material leading up to it, by the applicant, that the account given to the ship's crew was not given by him and was false.

32. It is argued that this account provides a prima facie basis for an alternative claim for protection under the convention: that is, that he has a well founded fear of being persecuted as a result of his desertion from the Ethiopian army. This was, simply put, never the case for the applicant in his material or before the RRT.

33. The respondent says that the RRT ought to have, nonetheless, considered this alternative case in order to properly discharge their duties. In this regard Counsel for the applicant relies upon a comment by Justice Merkel in Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 at 13 which is as follows:

[13] The Tribunal's approach to this issue might be explained by the manner in which the appellant put his case. However, unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an appellant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the appellant: see Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63, Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15], Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294, Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 and Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113 at [58]-[59]. In any event, on a fair reading of his evidence before the Tribunal, the appellant based his claim on his activities in Burma and Australia

34. The context of the case being considered by Merkel J was quite different: the RRT was there considering an applicant's association with Karen peoples and political groups (see paragraph 41). In that case the RRT only considered the relationships of the applicant with one particular political group, and therefore did not deal with all of the aspects of the claim by the applicant.

35. A brief review of the cases referred to by Merkel J casts more light on this issue:

d) In Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 the Court said:

In my view the inquisitorial function of the RRT and the combined effect of the provisions to which I have referred, is such that the RRT is required to determine the substantive issues raised by the material and evidence before it. That duty, which was recognised by Brennan J in Bushell, is a fundamental incident of the inquisitorial function of an administrative tribunal such as the RRT.

The facts of this particular case related to claims of persecution in Sri Lanka in circumstances where the RRT concluded that the harm suffered was as a result of indiscriminate attacks. The RRT concluded that the harm or mistreatment was `indiscriminate cruelty' falling short of `persecution' and did not go on to consider whether there was a cause or connection between the cruelty suffered and the Tamil ethnicity of the applicants and if so whether there was something the Sri Lankan Government did to control it or simply tolerate it continuing.

e) In Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 the Full Court said:

Supposed failure to deal with a manifest but unarticulated case

15 We did not understand Mr Karp, for the appellant, to embrace the proposition that all young male Tamils in Sri Lanka faced persecution for reasons that they are members of a particular social group. In the circumstances of this case, that matter is of some importance. Unlike the appellant in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, this appellant was under no special disability. The appellant was represented before the Tribunal. Even so, had the evidence before the Tribunal disclosed such a case, the Tribunal would have been obliged to deal with it:

"Similarly, the RRT is not to limit its determination to the �case' articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant." Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 56 (per Merkel J)

16 However, the evidence in this case did not disclose a reasonable basis for such a claim. The appellant's own hypothesis, supported by the independent materials, was that there were militant Tamil groups such as PLOTE which were, for practical purposes, pro-Government and anti-LTTE. Hence not all "young Tamil males", if they constitute a particular social group, would be persecuted for reasons of membership of such group but for reasons of their real or supposed anti-government tendencies or for reasons of their race. There was nothing to suggest that, in Sri Lankan society, a social group of "young Tamil males with real or supposed anti-government tendencies", as distinct from other young Tamil males, would be recognised. This was not a case which required that the Tribunal deal with such considerations.

f) In Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 294 the Court repeated the comments of the Court in Paramananthan to the effect that the substantive issues raised by the material should be dealt with by the RRT and concluded upon this issue stating:

We should emphasise that our conclusions depend on the circumstances of this case. In many other cases the sole substantial basis for judging whether a person falls within the Convention criteria for a "refugee" will be the information as to his/her supposed history and background furnished by an applicant. Upon legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status.

g) In the case of Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 the Court described the process at paragraph 114 in the following terms:

[114] The review conducted by the Tribunal (as with the Refugee Review Tribunal) is, in substance, inquisitorial with the consequence that the Tribunal is "under a duty to arrive at the correct or preferable decision in the case before it according to the material before it": see Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J. In arriving at its decision the Tribunal is required to deal with the case actually raised by the material or evidence. Unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63; Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15] and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293. In arriving at its decision, an inquisitorial tribunal, such as the Tribunal, can be guided by the issues the parties choose to put before it and is to have regard to the case so put: see Grant v Repatriation Commission (1999) 57 ALD 1 at 5-6 and Brew v Repatriation Commission (1999) 94 FCR 80 at 84. In some circumstances a party who declines to raise an issue may have some difficulty in contending that an error in law was made as a result of a failure by the Tribunal to deal with that issue. However, that difficulty does not, as such, preclude review of a decision of the Tribunal (or the Refugee Review Tribunal) as an inquisitorial Tribunal on the grounds set out in s 476(1) of the Migration Act 1958 (Cth): see, for example, Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 at 570 [103] and 572 [113].

h) In Giraldo v Minister for Immigration and Multicultural Affairs [2001] FC A 113 the Court said, at paragraphs 58 and 59:

58 As I understood Mr Markus, he did not dispute that the effect of the authorities is as I have described, although he left open the possibility that the Full Court might take a different view, perhaps on the appeal in Sarrazola (No 3). He submitted, however, that the proceedings should not be remitted to the RRT, for two reasons:

* first, the RRT could not be said to have erred, given that the applicant did not make an express claim before it to fear persecution for reasons of membership of a particular social group;

* secondly, it was implicit in the RRT's reasons that there was no basis for any continuing fear of persecution on the applicant's part, because it had found that the FARC had succeeded in its objective of controlling the use made of the farm occupied by the parents-in-law.

59 I do not think that the first ground relied on by Mr Markus is a basis for denying relief to the applicant. In Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, at 50, I said this:

"The general principle is that a tribunal is not obliged to make out an applicant's case. However, there are circumstances where the tribunal may be obliged to undertake further factual inquiries, even though the applicant has not specifically requested that course: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 (FC) at 49-50. It seems to me that, where an unrepresented applicant presents evidence to the RRT which, if accepted, is capable of making out the applicant's claim that he or she satisfies the Convention on a particular basis, the RRT may be required to consider the issue. Particularly is this so where the RRT accepts the substance of the applicant's account. I agree with the comments recently made by Branson J in Bouianov v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, No 134 of 1998, 26 October 1998), at 2:

�The respondent contends that the applicant did not articulate before the RRT a conscientious objection to military training and service. It is true that he did not expressly do so, and a decision-maker is not obliged to make a case for an applicant (Luu v Renevier). However, in my view, in appropriate cases, a decision-maker such as the RRT may be required to give consideration to whether evidence in fact given by an applicant might support an application on a basis not articulated by an applicant. This will more likely be found to be the case where an applicant is unrepresented, as the present applicant was before the RRT'."

See also Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, at 63, per Merkel J; Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370, at 388, per Merkel J.

36. The true nature of the principle discussed in the above cases is that the substantive issues raised by the material before the RRT should be the subject of findings of fact and conclusions. In this case it was never the applicant's claim that he was a member of the armed forces and deserted: he has maintained throughout that this was an untrue statement, and indeed the applicant has maintained that he did not make such a statement (although the RRT found that he did). I find no error on the part of the RRT in failing to explore this issue as a basis for a refugee claim in the circumstances of this case. The circumstances of the cases referred to by Justice Merkel in Htun are quite different and do not involve inconsistent alternative versions of the facts that are completely contrary to the case put forward by the applicant.

37. Even if I were wrong in the above analysis, in this case it appears that the point is purely academic in that the applicant had not given any instructions to his Counsel that he intended to run any future review before the RRT on the basis of a claim that he was a member of the armed forces and had deserted. In the absence of instructions from the applicant that he wished to pursue his claim on this basis it appears that the arguments put forward by his Counsel on this occasion are at best academic and at worst disingenuous. On either basis they would not form a proper basis for the exercise of the discretion to judicially review the determination of the RRT.

Lack of probative material to support the findings of fact

38. The third point raised by the Counsel for the applicant was that the matters set out by the RRT in support of its finding that it did not accept that the applicant was jailed and tortured were illogical or of so little weight that such findings must be considered to be without any evidentiary foundation. The relevant paragraph of the RRT's decision relied upon by the applicant is in the following terms:

It follows that the Tribunal does not accept that the applicant was gaoled and tortured in connection with the EDP. A number of concerns reinforce this finding. First, the applicant's claimed ability to prise the metal roof off his cell without making enough noise to alert the guards was not very persuasive (there may have been other reasons the guards were not alerted, but not that he was able to escape by this means quietly). Second, the Tribunal is not satisfied that the applicant's detention could be unknown to any organisation in Ethiopia (the country information indicates that such incidents are reported to the human rights organisations even if those organisations do not verify or document them all). The applicant, at least, ought to have been able to say by now whether such organisations knew of his detention and if not, why not. It was not plausible that he simply had no idea whether his mother or sister or the EDP itself knew of his detention or tried to find him or secure his release. Third, the applicant gave information to the crew of the ship on which he stowed away, that his last job was as a soldier in the army, and he was absent without leave. The Tribunal is not persuaded by the argument that the ship's crew invented this information. The applicant it seems provided this information in the context of discussions about why he was on the ship and did not want to return to Ethiopia. (The Tribunal does not accept the applicant's assertion that there was no discussion of his reasons for leaving Ethiopia). If the applicant was fleeing political persecution as an EDP member, he would have said so in this context. (The Tribunal is not making a finding that the applicant was conscripted into the army. The Tribunal is not even making a finding that the applicant was a volunteer in the army. The Tribunal's finding is that the applicant did change his account of why he left Ethiopia and why he had problems with the authorities, which reinforces the Tribunal's finding that the latter account had been fabricated).

39. The first issue that must be identified from this paragraph is that it does not rely solely upon the three categories of facts described as concerns that `reinforce' the RRT finding of credit. The first sentence of the paragraph makes it clear that this conclusion follows from the conclusions set out in the previous paragraph. The conclusions set out in the previous paragraph were not challenged by the applicant, nor could they be. Those previous conclusions were in the following terms:

The Tribunal does not accept that the applicant was a member of the EDP. First, the applicant claimed he joined the EDP in 1997. However, the evidence indicates the EDP did not exist at that stage. The applicant did not initially claim he joined a precursor to the EDP, but that he joined the EDP itself. Later he sought to reconcile this with the country information by saying that he had believed that the entity that he initially joined was in fact the EDP. The Tribunal is not satisfied that this explanation is true. There is a significant difference between a gathering of a few youth planning to create a democratic party and the meetings and activities of such a party once created. Second, the applicant named someone as the leader of the Party at the last Ethiopian elections, of whose existence there is no evidence (Admasu Woldesamayat). The Tribunal would have expected there to be some reference to this person in the material about the EDP if he ever was a prominent figure in the party (let alone its leader). Third, the applicant was unable to name any of the publications he claimed to have distributed. Fourth, the applicant did not know of the prior connection between members of the EDP and the AAPO, or the later evolution of the EDP into the UEDP. And fifth, the applicant gave as one reason he did not vote in elections that he was "too busy". Such an attitude is very much at odds with his claim to have been interested enough in politics to propagate support for the EDP. In assessing the credibility of an applicant's claims to be a member of a particular political (or religious) organisation, the Tribunal is aware of the importance of not expecting an unrealistic level of knowledge, especially taking into account the educational and socio-economic background of the applicant and their claimed level of involvement. However, the applicant's claimed involvement appears to have existed in a knowledge vacuum and a person of little apparent political commitment, and the Tribunal is not required to accept his claims uncritically.

40. It appears clear that the RRT's finding that they did not accept that the applicant was jailed and tortured in connection with the EDP (and effectively, for that matter, at all) flowed from their rejection of his credibility in the previous paragraph. Put simply, the RRT member did not believe the applicant. In addition the RRT found a number of other aspects of the case were such that it reinforced her conclusions in this regard.

41. Even if the applicant's argument that the matters listed as reinforcing the RRT's finding with respect to the applicant's allegation of being jailed and tortured were not of any weight were accepted, that finding nonetheless flows from the previous one that is not attacked. In these circumstances it is difficult to see how the applicant can show a reviewable error on the part of the RRT.

42. In any event the matters relied upon as reinforcement for the finding do not appear to me to be open to criticism. The first of those matters was an allegation by the applicant that he was able to prise a sheet of roofing iron from his cell with a metal bed frame in order to escape, but was able to do so `quietly', so as not to alert attention to himself. The RRT member, not surprisingly, found that this was not very persuasive.

43. Secondly, the RRT member was concerned that despite the applicant's claims that he had been involved in a political party in Ethiopia and that there was considerable reporting of human rights abuses to a number of organisations it was unknown both to the political party and the organisations that the applicant had been jailed or tortured. The applicant had no explanation for how that situation could arise. Similarly the applicant maintained that he did not know whether his mother or sister knew of his detention or sought to secure his release. These are all details of a version of events that seem unlikely upon any rational view of the matter, and are therefore capable of adding to the RRT members concerns as to the credibility of the applicant.

44. The final matter was the RRT's reliance upon the allegations of the ship's crew. It was open to the RRT member to accept the versions given by the ship's crew as to the statements made by the applicant. Once this occurred, on any view of the evidence, it is a matter which seriously damages the credibility of the applicant. The findings were open to the RRT in this regard, and the matters do logically and reasonably support the RRT member's decision that she did not accept the applicant's version of events.

45. It is, of course, open to the RRT member to find against the applicant as a result of a rejection of his evidence on the basis of credit: see for example Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611. In Warnakulasuriya v Minister for Immigration & Multicultural Affairs [1998] FCA 336 Finklestein J said:

...The acceptance or rejection of "facts" is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some "facts" may be so implausible that they should not be accepted. An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.

46. Similarly in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 McHugh J said (at paragraph 67):

In addition, the prosecutor alleges that the Tribunal breached s.430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were `utterly implausible'. However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelieve is apparent in this case from the use of the word `implausible'. The disbelieve arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.

47. In the circumstances I find no reviewable error on the part of the RRT and therefore dismiss the application.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date:
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