FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v Al Husaini [1999] FCA 1307 MIGRATION ) REFUGEE ) – Doctrine of refugee sur place – whether claimant had contrived a pretext for such a claim – "sole purpose" test – whether more than a remote chance is a real chance – whether a slip in a recapitulation by the Tribunal showed any substantial error of law. Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100 applied Mohammed v Minister for Immigration & Multicultural Affairs [1999] FCA 868 applied Howarth v Howarth [1964] P 6 referred to Chetwynd-Talbot v Chetwynd-Talbot [1963] P 436 referred to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v MOHAMMED AL ABBAS AL HUSAINI N 497 of 1999 BURCHETT J SYDNEY 17 SEPTEMBER 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 497 of 1999 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant AND: MOHAMMED AL ABBAS AL HUSAINI Respondent JUDGE: BURCHETT J DATE OF ORDER: 17 SEPTEMBER 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 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 NEW SOUTH WALES DISTRICT REGISTRY N 497 of 1999 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant AND: MOHAMMED AL ABBAS AL HUSAINI Respondent JUDGE: BURCHETT J DATE: 17 SEPTEMBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application by the Minister for the limited form of review available in respect of a decision of the Refugee Review Tribunal. 2 The Respondent is a citizen of Iraq, who arrived in Australia on 10 October, 1998, and promptly applied for a protection visa. On 2 December 1998, this was refused, whereupon the Respondent made his application to the Refugee Review Tribunal. That application was successful, not on the ground that he had left Iraq as a refugee, but on the ground that he was, in Australia, a refugee sur place. 3 To understand the challenged decision, it is necessary to recount briefly some of the circumstances. The Respondent was born in Karbala, a holy city of Iraq, some 26 years ago. He is a Shi'ite, that is to say, a member of the Muslim sect which holds Ali, Mohammed's son-in-law and the fourth caliph, to be the Prophet's first true successor. Although Shi'ites are in the majority in Iraq, the Iraqi ruling class belongs to the orthodox Sunni tradition. Because of this fact, and because of the bitter war between Iraq and Shi'ite Iran, the Respondent claimed he and his family were treated harshly when they came to the notice of the authorities. The Tribunal accepted that, in 1991, after a rebellion by some Shi'ites, the Respondent was detained, interrogated and beaten, severely enough to cause an injury to his hand which he described (without contradiction) as permanent, and was thereafter required to report regularly each six weeks to the security forces. When he reported, he had to pay bribes to secure favourable and timely attention. 4 But the Tribunal considered Shi'ites were not generally subjected, "simply for reasons of religious belief", to persecution. It rejected a claim that the Respondent's father was executed merely for trading in United States dollars, as others did, in a business of food wholesaling, and a claim that the Respondent himself faced excessive punishment on a similar charge, on which he (in his absence) and his brother had been sentenced to 15 years of imprisonment. 5 The Respondent's account of his departure from Iraq is important. For a sum equivalent to US$1,000, he was able to obtain a passport issued by corrupt officials and to have his name temporarily deleted from a "wanted" list. Armed with his passport, he crossed the border to Jordan. In Amman, he was introduced to an agent who procured him a ticket and visa for travel to Australia via Bangkok. He paid US$7,500 for this assistance. In the transit area at Bangkok, the agent, who had accompanied him there from Amman, gave him a boarding pass for a Sydney flight, retaining his airline ticket and his Iraqi passport. He was instructed to destroy his boarding pass once he was on the plane. 6 After reciting these matters, the Tribunal stated that the Respondent had "embellished his claims at various points". Although the Tribunal accepted, as I have said, the Respondent's claims about his treatment in 1991, and the imposition on him of a requirement to report to the authorities regularly, which became the occasion for the effective extortion of bribes, it found: "The Tribunal is of the opinion that the rest of the applicant's evidence has been embroidered or fabricated so as to lend substance to an application for a protection visa in Australia". Embroidering, it should be remarked, is not the same thing as fabrication, and the Tribunal appeared to accept that some of the occurrences alleged had happened, while discounting their significance – the Respondent's need to pay bribes was an example. The Tribunal expressed a doubt about the Respondent's father's execution, notwithstanding that it made no finding concerning any inference arising from his death certificate which was produced to it. Thus the Tribunal rejected the Respondent's claim to have had a well-founded fear of persecution for a Convention reason at the time of his departure from Iraq. 7 But what proved crucial, in the Tribunal's view, was the evidence about the Respondent's position in Australia, where he is without travel documents. The Tribunal discussed evidence given by the respondent in which he professed to have no recall of details of his journey. It then found: "I consider that he has pretended to be unaware of his flight details in order to protect the modus operandi of the agent who brought him from the Middle East to Australia illegally. There is a brisk business in moving Iraqis to the West. Earlier this year Australian police smashed a Sydney-based ring which had smuggled in 183 Iraqis since 1997 and are investigating reports that a further 154 illegal Iraqis had arrived in Australia between July and December 1998. A news agency report states that the Iraqis are met in Bangkok and given false documents before boarding an aircraft for Australia (Australia Smashes Iraqi Immigrant Racket, Reuters of 15/3/99, DX 34361). The applicant came here via Bangkok and I am of the opinion that he followed a similar procedure. … Due to the sanctions imposed on Iraq by Australia and other countries the only legal way in and out of Iraq is through Jordan. The applicant faced no problems in arriving in Jordan and leaving Jordan for Australia because he had his Iraqi passport. Whether the applicant used a bribe or not to obtain his passport I consider that the passport was accepted as a genuine travel document by authorities at the Iraqi border checkpoints, by Jordanian border officials, Jordanian airport officials at Amman airport and by airport officials at Bangkok, Thailand. I am of the opinion, therefore, that the applicant could have used the same passport to go the reverse way without encountering problems. The difficulty lies in the fact that the applicant abandoned his passport just before arriving in Australia. On being given the details of this particular case, DFAT's advice is that if this particular applicant arrived back in Jordan without a passport or other valid travel document, he would not be admitted because Jordan would have the view that he should have obtained valid travel documents from the Iraqi mission in Australia (DFAT Report 0130 of 23/2/99, CX33818). When asked what options were open to Iraqis who were returning home from Australia but were unable to produce their original passports or other travel documents, DFAT advised that the Iraqi mission in Canberra could issue a travel document that would be valid for a one-way trip to Iraq and would be valid for six months. The document would cost $60 and would be issued once the mission was assured of a person's Iraqi nationality and identity. According to the information obtained by DFAT, the applicant's military service booklet would satisfy the mission's requirements (DFAT Report CIR 464/98 of 21/12/98, CX33077). Iraqis who 'left Iraq officially' would probably face no difficulties in being issued a new passport if they can produce proof of nationality and identity (DFAT cable AM2244 of 26/10/97, CX26100). As stated before, I consider that the applicant left Iraq for Jordan normally and without hindrance through border checkpoints. This implies that he had the requisite exit permit for Jordan. On the evidence before me, however, I cannot take it for granted that the Iraqi authorities were aware that he had plans to come to Australia. That being so, I am not satisfied that the applicant had 'official' approval to leave Iraq for Australia, and therefore I consider that he might fall into the category of Iraqis who did not leave Iraq officially. In this circumstance, and given the fact that on the evidence before me the applicant would have violated his conditions of deferment of military service by leaving the country rather than continuing with his studies, DFAT states: We do not know what penalties are laid down in Iraqi statute for persons convicted of violating entry or exit requirements or military service requirements, or whether these offences are currently subject to additional more arbitrary punishments. Revolutionary Command Council Decision No. 137 of 25 November 1996, as published in the Iraqi Official Gazette of 9 December 1996, stipulated that no person detained for entering or departing Iraq illegally shall be freed until the issuance of a final judgment in their case. It is thus reasonable to assume that such a person would face an extended term of imprisonment. (CX33818). If the applicant fears imprisonment in the circumstances detailed above, I am not satisfied that such fear in itself would entitle him to protection in Australia. The harm (i.e. the imprisonment) that he would face would be a result of him having breached Iraq's exit laws and military service laws. In Wu Guo Xiong & Anor v MIEA Tamberlin J stated that in the particular circumstances of that case, 'Sanctions imposed on a person by a government for breach of its migration laws does not make the person a "refugee" for Convention purposes' (unreported, Federal Court, Tamberlin J at 26, 9/8/95; upheld by the Full Federal Court: Wu Guo Xiong & Anor v MIMA, unreported, Lee, Carr and R.D. Nicholson JJ, 19/2/97). I consider that ordinarily the applicant's case would fit the reasoning applied in Wu Guo Xiong in that he could not be said to be persecuted if he faces punishment for having breached a generally applicable exit law. Even if the term of imprisonment anticipated by the applicant for having breached a law of general application (here, Iraqi exit law) is unnaturally severe by Australian standards – severe enough to amount to persecution – it would not, without more, be persecution for one of the reasons stated in the Convention (Dawson J in Applicant A at 343.4 citing (1995) FCR 309 at 319, per Beaumont, Hill and Heerey JJ) and thus the applicant still would not be entitled to protection in Australia under the Convention. However, Applicant A also stipulates that such punishment must be non-discriminatory (Brennan CJ at 334). Independent evidence gives conflicting views on whether the applicant, in being punished for breaking exit laws, would be treated especially harshly if he was known to have applied unsuccessfully for refugee status abroad. The Campaign Against Repression and for Democratic Rights in Iraq (CARDRI), a small British volunteer group, states that: It is an offence to leave the country without an exit visa … I believe that it has recently been made a capital offence … There is no sense in which Iraq can be said to be operating under the rule of law. A person who was absent from the country without explanation would, without any doubt on the part of [Iraqi opposition sources and Iraqis who have left the country] be suspected of sympathy if not activity within the opposition. It has been a capital offence to be a member of any party other than the Ba'ath for 15 years. - CARDRI fax to the RRT, 28/6/95, CX22803 The International Organisation for Migration (IOM) states: The information available from the UN Human Rights Commission, HCR and other humanitarian agencies, suggest that the return of unsuccessful asylum seekers to both countries [ie, Algeria and Iraq] generally constitute a real threat to their safety and it is not all risk-free. In other words, genuine fears of persecution surround the return of such persons to both countries. An Australian government agency interviewed by the Department's Country Information Service states: [I]f refugee status applicants have not been involved in genuine dissident activity in Iraq or with a major opposition group outside Iraq, then they should be able to return to Iraq without fear of death or harsh retaliation …. The fact they have applied for refugee status in Australia should not prove detrimental to their future in Iraq. It should be noted [that] the Iraqi regime deals harshly with those it considers dissidents or opponents. Since [Australian protection visa applicants] have been educated, employed and successfully escaped Iraq (either by legal or illegal means), it would appear the regime has not considered them a problem. - CIR Report 17/97 of 17/12/96, CX21327 DFAT states: We could obtain no confirmation of the story that the Iraqi regime regards refugee and asylum applicants as political traitors … In practice, the consequences for a failed asylum seeker on return to Iraq might depend very much on the actual history of the person concerned and the profile that his case had received in the country in which asylum was sought. A known asylum seeker on return might expect, at a minimum, to be questioned, but this is a fairly routine matter in Iraq anyway. - DFAT cable AM2439 of 4/3/98, CX29669 Information regarding the ease of return of Iraqis who have migrated and taken out citizenship of another country, appears to conflict with a story common to many Iraqi refugees – that through the very act of applying for refugee status or citizenship of another country, the Iraqi regime regards them as political traitors and they face the death penalty on return. It is a fact that the penalty in Iraq for treason is death. The implications for individuals and family members in Iraq of such applications is difficult to ascertain … the reports of the UN Special Rapporteur provide … instances of harassment. - DFAT cable AM2244 of 26/10/97, CX26100 The information given by Australian government agencies appears to contradict the information given by CARDRI and IOM. The applicant, on his own evidence, has no significant political profile and did not take part in politics. Given this and my findings that crucial areas of his evidence lack plausibility and a Convention nexus and are unsupported by independent evidence, I would initially be inclined to the view that, going on the evidence from the Australian agencies he would not face Convention based persecution for illegally leaving Iraq for Australia. However, I consider that in this particular case the current state of the information before me and the combined advice from CARDRI and IOM raise more than a remote possibility that the applicant could be persecuted as a person whose unexplained absence from home could result in a political opinion being imputed to him. In sum, I am not satisfied with the credibility of the applicant's claim to have been persecuted and to fear more persecution over his Shi'ite origins. Neither am I satisfied that the currency-dealing jail sentence, if true, has a Convention nexus. Yet other aspects of the applicant's evidence are implausible. The totality of his evidence up to the point he left Iraq leaves me unconvinced that he is owed protection in Australia under the Convention. However, the fact that he has to apply for a passport replacement raises the possibility in his particular circumstances that he might face persecution on return to Iraq on the basis of an imputed political opinion. I consider that the applicant has cynically left himself in such a position in the hope that it would give him a basis on which to remain in Australia; DFAT reports that 'loss of documentation is … seen … as a possible bonus if applying for refugee status' (cable AM 2244, CX26100). That does not alter my finding that I am not satisfied, on the evidence before me, that the applicant would not face persecution on return to Iraq on the basis of an imputed political opinion." 8 The Tribunal's final conclusion accepts the Respondent as a refugee sur place. It is this conclusion which the Minister attacks. His principal contention is that the finding of more than a remote possibility that the applicant could be persecuted as a person whose unexplained absence from home could result in a political opinion being imputed to him is vitiated by the reference to the need "to apply for a passport replacement [as] rais[ing] the possibility in his particular circumstances that he might face persecution on return to Iraq on the basis of an imputed political opinion", and the comment: "I consider that the applicant has cynically left himself in such a position … ." 9 What the Tribunal means, by the expression it borrows from sports writers' comments on professional fouls in soccer, is made clear by the second half of the sentence. Loss of documentation is a possible bonus. The Tribunal had already noted that concealment of travel details protected the agent. That is not to suggest the deliberate manufacture of a provocation of the Iraqi authorities in order to produce a new ground for asylum. Rather, it is directed to the security of the means of flight from Iraq, and the persuasion of the Australian authorities. In any case, it was not the Respondent who destroyed his passport. The only evidence is that it was the agent in Bangkok who kept his passport, as well as his ticket, when giving him his boarding card. The Tribunal expressly found that "he followed a similar procedure" to that followed by other Iraqis who were "met in Bangkok and given false documents before boarding an aircraft for Australia". On the evidence and the Tribunal's findings, the Respondent only left himself in the position he was in in the sense that he paid for and accepted an illegal flight to Australia. At the time he left Amman, he could hardly have known all that would be involved. Although, on the Tribunal's findings, what happened had consequences for his claim to refugee status, he could not be said to have set out to contrive those consequences. What he aimed at achieving was to flee from Iraq and to seek refuge in Australia. 10 The Minister relies on the judgment of Gummow J (with whom, relevantly, Keely and Jenkinson JJ agreed) in Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100 at 118, where his Honour said: "[I]t should be accepted that actions taken outside the country of nationality … which were undertaken for the sole purpose of creating a pretext of [scil. for] invoking a claim to well-founded fear of persecution, should not be considered as supporting an application for refugee status." (Emphasis added.) See also Mohammed v Minister for Immigration & Multicultural Affairs [1999] FCA 868, a decision of Lee J, who made it clear (at para 26) that the principle relates to "actions undertaken for the sole purpose of creating a pretext for claiming fear of persecution, [which] do not make a well-founded fear of persecution". As his Honour added (at para 27): "In other words, a fraudulent claim of fear cannot be a well-founded fear". 11 In the present case, the Tribunal did not say, nor could it on the evidence and its findings have said, that the Respondent's sole purpose, or, indeed, even any part of his purpose, was to create a pretext. The Tribunal's reasons do not suggest that the Respondent had no bona fide claim, but that he exaggerated it, and that it was not well founded. Certain basic facts were accepted – detention for two weeks, beatings sufficient to cause injury, the continued requirement to report to the authorities, and the necessity to pay bribes. The Respondent also claimed further problems in Iraq which the Tribunal discounted. But the fact is the Respondent came to Australia to present his case for asylum. Its rejection does not make his coming here in itself a pretext, solely or at all to create a new case, based on the doctrine of refugee sur place. 12 Nor does the rejection, on the probabilities, of an applicant's case that he had a well-founded fear provide, without more, a basis to conclude that even the rejected evidence should be stigmatized as fraudulent. That would be a large further step to take. Evidence which does not persuade a tribunal may possibly, though not probably, be true; and a finding of fraud is not implicit in a rejection on the civil onus of evidence, especially a rejection expressed in the alternative – "fabricated or greatly exaggerated"; "embroidered or fabricated". The point was put strongly in a unanimous decision of the English Court of Appeal in Howarth v Howarth [1964] P 6 at 16-18, where the earlier decision in Chetwynd-Talbot v Chetwynd-Talbot [1963] P 436 was expressly approved. 13 In my opinion, the Tribunal did not err in law when it applied to the Respondent's case the doctrine of refugee sur place. 14 But the Minister then argues that the Tribunal failed to apply properly the "real chance" test stated in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. It is said the Tribunal wrongly equated a more than remote chance with a real chance. But why is a chance that is more than remote not a "real chance"? This kind of argument takes a practical question, whether the facts engage Australia's obligations towards refugees, and turns it into a scholastic puzzle. As the High Court made clear in Guo, the "real chance" test is merely a means by which the treaty language adopted by the statute is to be given effect. It cannot supplant the actual words "well founded fear". What the Tribunal was doing was reasoning towards a conclusion that, since there was "more than a remote possibility that the [Respondent] could be persecuted", he did have a well-founded fear. Having regard to the known severity of punishments in Iraq, the conclusion was really inevitable. 15 The Minister placed particular reliance on the final statement "I am not satisfied … that the [Respondent] would not face persecution" as reversing the onus. But, of course, it could not be a reversal; on no view did the Respondent have to show that he would face persecution. He had only to show a well-founded fear, which he could do by showing a real chance. What the Tribunal meant was that this chance could not be discounted, and was therefore real. In any case, the passage in question in the reasons is part of a summary, introduced by the words "[i]n sum". The positive finding was made in the previous paragraph, and a mere slip, in a summary recapitulation, could hardly vitiate an administrative decision, already correctly reached. It is really painting the lily to add that such a decision should not be treated pedantically or over-technically: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 16 Finally, on this aspect of the case, not only would it be wrong to examine the decision minutely in a search for error, rather than to consider its substance, but in this case the Minister's minute examination of the Tribunal's use of the expression "more than a remote possibility" overlooks the fact that the Tribunal had actually made clear its correct understanding of the weight of that expression. For, early in its reasons, it explained the relationship between well-founded fear and real chance in perfectly orthodox terms: "Fourth, an applicant's fear of persecution for a Convention reason must be a 'well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent." 17 The application must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett. Associate: Dated: 17 September 1999 Counsel for the Applicant: Mr A Robertson SC with Mr R Lancaster Solicitor for the Applicant: Australian Government Solicitor Solicitor for the Respondent: Mr R Kessels Date of Hearing: 2 July 1999 Date of Judgment: 17 September 1999