Auda v Minister for Immigration & Multicultural Affairs [1999] FCA 1691

FEDERAL COURT OF AUSTRALIA

Auda v Minister for Immigration & Multicultural Affairs [1999] FCA 1691

JASSIM HASSAN SULTAN AUDA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1101 OF 1999 TAMBERLIN J 26 NOVEMBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1101 OF 1999

BETWEEN: JASSIM HASSAN SULTAN AUDA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 26 NOVEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application is dismissed. 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 1101 OF 1999

BETWEEN: JASSIM HASSAN SULTAN AUDA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 26 NOVEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an order of review of a decision made by the Refugee Review Tribunal ("the RRT") on 21 September 1999. The task for the RRT was to determine whether as at that date the applicant was a "refugee" within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol,which I need not repeat here. 2 In this case the applicant arrived in Australia on 3 June 1999. On 8 June he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth). On 6 July a delegate of the Minister refused to grant a protection visa and on 8 July 1999 the applicant sought review of that decision. The decision of the RRT was that it rejected the application for review and affirmed the decision not to grant a protection visa. The application for an order of review in this Court was filed on 24 September 1999. It does not identify any grounds in respect of which it is said that the RRT decision was in error either in law or principle. 3 On the hearing today, the applicant was unrepresented and did not make any submissions in chief as to the basis for the application. However, after hearing the submissions by counsel for the Minister the applicant expressed the basis of his case, which fundamentally was to throw his position onto the mercy of the Court. No particular specific grounds which would warrant review were asserted. There was a general history given but no particular sections of the decision of the RRT were referred to. 4 The decision of the RRT in the section dealing with findings and reasons accepted that the applicant is a Bidoon from Kuwait and that strictly speaking he is stateless and without nationality. The RRT found that he was born and educated and had worked in Kuwait, and registered as a Bidoon with the government in 1996 and was given a temporary resident's card pending a determination of his nationality. He travelled from Kuwait in 1997 using a passport, which he indicated to me at the hearing today, was only valid for one exit. The reason he says that he left the country was to secure medical assistance for his ailing father. 5 The RRT found that Kuwait is the applicant's country of former habitual residence within the meaning of the definition of refugee, and his claims for a protection visa were assessed by the RRT against that country and the conditions in that country. There was extensive country information and intelligence before the RRT on which it obviously placed weight. The applicant on the hearing before me this morning submitted that the material relied on by the RRT was generally more likely than not to be distorted, and did not accord with his views and those of his parents as to the prevailing situation in Kuwait with respect to his group, which can be identified as Bidoons. 6 The RRT found that the applicant was an unreliable witness. One of its basic grounds for this finding was that the applicant did not make clear or did not disclose that he had been to Europe in mid-1997, until questioned by a delegate about photographs which had been found in his possession indicating overseas travel. This was a central feature in the RRT's decision, which together with a number of other matters, led to a non-acceptance of the applicant's statements. Credibility was important in this case because the applicant did not produce any significant or substantial corroborative material. 7 The RRT went on to reject a number of assertions based both on probability and on the views which it had formed as to credibility. In particular, it did not accept that the applicant was refused a driving licence in 1993 for allegedly collaborating with the Iraqis. The RRT also relied on the fact that the applicant had declared in his protection visa application that it was almost impossible to get travel documents in Kuwait and that they were only good for departure, where in fact the applicant was able to leave the country for Europe and subsequently return. A finding was made that the applicant did not take his father to Europe for hospital treatment as claimed and that his travel to Europe was discretionary. In those circumstances, emphasis was placed by the RRT on the finding that he was willing to return to Kuwait in mid-1997, and that this was inconsistent with holding a well-founded fear of persecution for reasons of race or for any other Convention reason. 8 In some respects the RRT accepted the evidence of the applicant and certainly accepted that the applicant did not want to go back to Kuwait as a subjective matter. The question for determination by the RRT though was not whether the applicant had a fear of persecution, but whether any fear which he did entertain was well-founded and was for a Convention reason. The RRT found that the applicant was never seriously troubled by the authorities for a Convention reason. This is a finding of fact based on a consideration of all the evidence and the way in which the applicant responded to questioning. Demeanour is sometimes an unsafe basis on which to base a decision but when combined with reasons, which on their face carry some force, it can be an important matter to take into account. 9 The applicant claimed that he had been discriminated against after the Gulf War in that he could not get married, or get a job or go to university. These claims were not accepted in so far as getting married and the job were concerned, and it was pointed out that on country intelligence some Bidoons are employed by the Kuwaiti Government while others are employed by their sponsors. The RRT relied also on the fact that the applicant stated in his protection visa application that he worked as a labourer on odd jobs and that he made a living selling fruit and vegetables. It was accepted that he could not attend university but this was because he did not complete secondary school and was not qualified. 10 The conclusion reached by the RRT was that it did not accept that the applicant would be punished for a Convention-related reason if he returned to Kuwait. 11 In all the circumstances, I consider that the decision of the RRT was based on a view which it formed having seen the applicant give evidence. On this view of the demonstrated unreliability of that evidence, the RRT also found that it could not be satisfied that the applicant's father was detained and tortured in January 1993 on suspicion of collaboration as claimed. 12 Looking at the decision as a whole, it seems to me that there is no error of law or principle disclosed in the decision. As I pointed out to the applicant earlier, the task of this Court is to examine the decision of the RRT having regard to the material before it and the submissions made by an applicant as to likelihood or existence of error. In the present case I am not satisfied that any such error has been indicated. While I fully accept that the applicant has a fear and is unwilling to return to Kuwait, I am not satisfied that he has made out a case that there is an error in the findings of the RRT. Accordingly, I think that this application ought to be dismissed. 13 In so far as the applicant has thrown himself on the mercy of the Court, I must point out that the role of the Court in this matter is not to make a substantive decision as to whether the applicant should be allowed to remain in Australia for reasons of individual merit or because of compassion. The sole task of this Court is to examine by way of judicial review the decision made below and to see whether it was reasonably open to the RRT, having regard to proper principles of law and questions of fact which needed to be determined. The decision was not shown to be erroneous in any reviewable aspect. Accordingly, the application must be dismissed. 14 Although the Minister asks for a costs order, in the exercise of my discretion in this matter I do not think this is an appropriate case in which to make an order as to costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.