Al Mansour v Minister for Immigration and Multicultural Affairs [2001] FCA 58

FEDERAL COURT OF AUSTRALIA

Al Mansour v Minister for Immigration and Multicultural Affairs

[2001] FCA 58 MIGRATION – application for protection visa – whether decision of Tribunal based on false premise and illogical. Migration Act 1958 (Cth) ss 5, 36(2), 65, 476, 476(1)(b), (c), (e), (g)

Minister for Immigration and Multicultural Affairs v Sameh [2000] FCA 578 referred to Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied ABDULHUSSEIN MAHMOUD MOHAMMED AL MANSOUR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 81 OF 2000 LEE J 9 FEBRUARY 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 81 OF 2000

BETWEEN: ABDULHUSSEIN MAHMOUD MOHAMMED AL MANSOUR

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 9 FEBRUARY 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal be set aside. 2. The matter be remitted to the Tribunal for reconsideration according to law. 3. The respondent pay the applicant's costs of the 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 W 81 OF 2000

BETWEEN: ABDULHUSSEIN MAHMOUD MOHAMMED AL MANSOUR

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 9 FEBRUARY 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") which "affirmed" the decision of a delegate of the respondent ("the Minister") not to grant the applicant a "protection visa". 2 The applicant is sixty years of age. His country of nationality is Iraq. He was a passenger on a vessel that entered Australian waters in September 1999. The applicant arrived in Australia without authority or travel documents and has been held in a detention centre since his arrival. He applied for a protection visa in October 1999. 3 Section 65 of the Act states that the Minister is to grant a visa if satisfied that the criteria for the grant of the visa have been satisfied. 4 Pursuant to s 36(2) of the Act, a criterion for the grant of a protection visa is that the applicant is a person to whom Australia has protection obligations under the "Refugees Convention" as amended by the "Refugees Protocol" (together referred to hereafter as "the Convention"). Section 5 of the Act defines "Refugees Convention" as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and "Refugees Protocol" as the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 5 The Tribunal accepted that a person to whom Australia has protection obligations is a person who is a refugee as defined in the Convention, namely, a person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…" 6 In its reasons for decision the Tribunal stated that it accepted that the applicant "is a Shia Muslim and that he was a well-known and wealthy businessman with business interests and property in Baghdad and Basra". The applicant is a widower. He has three sons, who live in Basra and operate business interests of the applicant, and a daughter, who lives in Baghdad in a house owned by the applicant. 7 As a person of means, the applicant was subjected to demands on behalf of the Ba'ath Party, which rules Iraq, to make significant contributions to Ba'ath Party funds. The applicant was not a member of the Ba'ath Party. The applicant stated, and the Tribunal did not find it to be otherwise, that if he refused to provide the funds demanded, it would be assumed that the applicant opposed the rule of President Hussein. The applicant said that in 1993 or 1994 a group of wealthy businessmen in Baghdad refused to make donations as demanded and they, and some of their children, had been executed summarily. The applicant feared he risked death if he did not continue to make payments and believed that similar executions were being carried out at the time the applicant left Iraq in July 1999. 8 In 1996 a satellite receiver in the applicant's home was confiscated by Iraqi authorities as an illegal possession. The applicant paid a 500,000 dinar fine and his son, who took responsibility for installing the receiver, was imprisoned for six months. The applicant claimed that he obtained the "dish" to receive political and religious material from Iran, distribution of which was prohibited in Iraq. He had supplied recordings of some of that material to trusted friends. Part of his claim before the Tribunal was that if he were returned to Iraq and "interrogated", the purpose to which the satellite receiver had been applied would be part of the information obtained in that "interrogation", and he would be accused of acting against the President.