Najim v Minister for Immigration & Multicultural Affairs [2000] FCA 1470

FEDERAL COURT OF AUSTRALIA

Najim v Minister for Immigration & Multicultural Affairs [2000] FCA 1470

MIGRATION – protection visa – Refugee Review Tribunal – duty to give particulars of information relevant to possible affirmation of delegate's decision – duty to invite comment – whether Tribunal failed to provide reasonable opportunity to comment on adverse information

Migration Act 1958 (Cth) s 424A, s 424B ABDUL WAHAB ABDULLAH NAJIM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS No W80 of 2000 FRENCH J 20 SEPTEMBER 2000 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W80 OF 2000

BETWEEN: ABDUL WAHAB ADBULLAH NAJIM

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 20 SEPTEMBER 2000

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The Applicant to pay the Respondent's costs including those associated with the amendment to the original application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W80 OF 2000

BETWEEN: ABDUL WAHAB ADBULLAH NAJIM

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 20 SEPTEMBER 2000

PLACE: PERTH

REASONS FOR JUDGMENT

Factual Background 1 Abdul Wahab Abdullah Najim was born in Iraq on 29 May 1965. When he was two years old his family left Iraq and moved to Bahrain because his father had worked there. According to Mr Najim the members of the family left Iraq on a legal Iraqi passport. While in Bahrain they had temporary residency which was renewed every two years. He stayed there until 1990. According to a statement which he made by way of statutory declaration (sworn 7 November 1999) the family's temporary residency in Bahrain was cancelled in 1990 because of the invasion of Kuwait by Iraq. All members of the family were deported to Jordan, it then being the only country that would accept Iraqis. According to Mr Najim's statutory declaration, his father took his three elder brothers and sister back to Iraq with him in about December 1990. Mr Najim said he stayed with his mother and one of his sister's and his youngest brother in Jordan in the hope that they would be able to return to Bahrain. This did not eventuate. He says he stayed in Jordan from 1990 to 1995. Upon entry he only had a right to temporary residency for three months which was renewed for a further three months. He said that after two years in Jordan, King Hussein had given a pardon for those who overstayed their visa and gave them one week to leave. They stayed for a further two and a half years. Subsequently he said he was arrested and imprisoned for about three and a half months and his wife for a month. He paid for release. The authorities wanted to deport him to Iraq but allowed him to select which country he wanted to go to. He asked to go to Sudan because a visa was not necessary. He said he went to Sudan in February 1995 and remained there for a year. He claimed that his father and brothers had been arrested and interrogated on a number of occasions following their return to Iraq. He believed that they were imprisoned during 1997 and 1998. He said his father advised him over the phone not to return to Iraq. If he returned to Iraq he also would be arrested and interrogated due to his family's involvement in the Interfadeh and alleged anti-government behaviour. He claimed his father told him he was forced to sign a document prior to his own release from prison which said that he would inform the regime upon Mr Najim's return to Iraq. In the event, Mr Najim said he decided to go to Syria because it was a more civilised country than Sudan, the economic situation was better and his aunt was there. He left Sudan and arrived in Syria in February or March of 1996. He claimed that while he was in Syria he lived there illegally. He would go to the government to obtain residency but they would not give it to him because they said he didn't need it. They would not ask any Iraqi to leave Syria. However he claimed that when the government wanted to control the population Iraqis were the first to be expelled. This had occurred in 1993 before he arrived in Syria. For his children to go to school he had to obtain a certificate from the Syrian government. 2 Upon his arrival in Syria initially he could not find work. He said he then found work as an editor for the Al Mowkef newspaper. This was the official Al Dalwah Party paper which is anti Saddam. He was not a member of the party. He said he worked there because the money was good and he enjoyed the job. At first he did not believe there was any risk involved in working there because he was working for the printer who printed the paper rather than the author. However, his father advised him that the authorities wanted him and he realised the job could be causing him to be at risk. He said it was difficult to work in Syria. He was employed because of his experience with computers. He had studied at the American University in Cairo. His father would phone at the office where he worked. He said he would ask his father about the situation in Iraq. He would only ask about how they were. He would talk to him about everything except politics because he feared the phone call might be monitored by the regime. His father would call fortnightly. For a six month period he did not receive any phone calls. The next time he received a phone call his father informed him that he had been in prison. He said that his father had told him in a cryptic way that he had been arrested and so had Mr Najim's brothers. The reason his father did not come out and tell him about his imprisonment was because he feared there might be some reprisal from the regime. His father would not make these phone calls from home but from a telephone centre which was evidently a group of public telephones. He said that when his father and brothers were imprisoned they were made to sign a document that should he return to Iraq they would inform the regime. If they did not sign the document they would not have been released. 3 Mr Najim said that he worked at the newspaper in Syria for eleven months but left because he feared the Iraq regime might catch up with him and as a result of his work with the Al Dalwah newspaper would set him up for deportation, imprisonment and execute him and his family. He started his own business which was illegal. He began selling watches from a table on the side of the street in Sayedah, Zeinab. He said he did this until he left Syria for Australia. His wares were confiscated by the council of Sayedah Zeinab. He was of the view that he was being selectively harassed in contrast with other illegal street sellers. He is concerned that the relationship between Syria and Iraq is good at the present time. The good relationship commenced in 1997. To keep the relationship in a good state, he said, the Syrian government places pressure on Iraqis who reside in Syria. 4 Mr Najim contacted a well-known smuggler. They negotiated a price of $US5,600 to get him to Australia. Arrangements were made for him to go to Thailand. This included providing him with a false Iraqi passport, and an airline ticket to Thailand. After travelling to Thailand, he travelled to Malaysia by bus. He contacted another smuggler in Malaysia and travelled by plane to Eastern Malaysia. From there he said he caught a bus to Indonesia and then flew to Jakarta. Eventually he travelled to Bima in Sorabuya and then travelled by boat to Australia, ending at Ashmore Reef from which he was taken into detention at Port Hedland. He claimed that if he were to return to Syria he would be deported back to Iraq. In Syria he said there were Iraqi security spies which would place pressure on the local government to have him charged with a breach of a Syrian law. 5 Mr Najim applied for a protection visa on 8 November 1999. That application was refused by a delegate of the respondent on 9 February 2000. In the course of the reasons for decision of the delegate refusing the grant of the protection visa, reference was made to inquiries which the delegate and others had made in relation to the alleged incarceration of Mr Najim's father and brothers in Iraq. Reference was made to contact effected by an officer from the Department of Immigration and Multicultural Affairs at the Australian Embassy in Athens, with a Dr Hussein Al Durazi, a childhood friend from the time that Mr Najim had lived in Bahrain. The main issue raised in the conversation, as recorded in the reasons of the delegate, was that the applicant's parents and a sibling still resided in Bahrain. No mention was made of them being deported from that country, rather it was said that they left and there was no mention of family persecution in Iraq even though they maintained phone contact and written correspondence. 6 On 25 November 1999, the Australian Embassy staff member, according to the delegate, again spoke with Dr Hussein, who gave the member a phone number of the applicant's aunt in Bahrain and on the same day the Embassy staff member spoke to the applicant's aunt. She stated that the applicant's family had travelled during the Kuwaiti war to Jordan, staying until 1995. They had moved from Jordan to Syria in 1995 and the applicant's father, mother and sons, Abdul Karim, Alaa and his wife and sister, Salwa were residing at a Syrian address. Again, on the same day, the staff member rang the applicant's family home in Syria and spoke to someone who said he was his eldest brother, Abdul Karim. Abdul Karim stated to the Embassy staff member, according to the delegate's reasons, that the family lived in Bahrain until the Gulf war, but had to leave Bahrain as there was some antagonism between the two ethnic groups, Bahraini and Iraqi. It was said that they had moved from Bahrain to Jordan in 1991, staying there until 1995, that they had decided to move to Syria in October 1995, but did not hold resident status there, that the brothers, Zouheir and Souad reside in Bahrain and Abu Dhabi respectively and that Hussein is in Sweden. The applicant's brother was said to be happy to talk to the Australian Embassy staff member. He never asked about the applicant's circumstances. 7 In the delegate's reasons it was said in relation to Mr Najim's employment at the newspaper: "I have determined that this matter has been embroidered or fabricated to enhance the applicant's application for a protection visa. I consider that if the applicant did work for Al Mowkef newspaper and had concerns for his and his family's safety he would have changed residence address after leaving the newspaper." He did not consider the basis of his employment at that newspaper gave grounds for a well-founded fear of persecution. At paragraph 5.4 of the delegate's reasons he said: "I have determined that the applicant's family has not resided in Iraq since 1967 and agree that between the period 1967 to 1990 the family used to visit Iraq for holidays while resident in Bahrain. The applicant's departure from Iraq was lawful although they have not returned for many years." It was therefore apparent at the time of the refusal of the application for a protection visa that inquiries had been made and information obtained which contradicted an important element of the applicant's contentions as set out in his statutory declaration, that is to say, that his father and siblings were imprisoned in Iraq. 8 In the event, Mr Najim applied to the Refugee Review Tribunal on 11 February 2000 for a review of the delegate's decision. He was represented before the Tribunal by an immigration consultant Dr Al Jabiri, of Dr Al Jabiri & Associates. Written submissions were provided to the Tribunal prior to the oral hearing. The oral hearing took place on 28 April. The written submissions were provided on 26 April. At the hearing before the Tribunal Mr Najim gave evidence with the assistance of an Arabic interpreter.