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. 9 The Tribunal accepted that the events described by the applicant had occurred but did not "accept the argument that if [the applicant] is interrogated on his return, the 1996 incident would be raised as evidence that he opposes the Iraqi regime". 10 As set out later in these reasons, the material before the Tribunal suggested that such an interrogation may involve torture, to ascertain whether the person interrogated was an opponent of the regime. The finding of the Tribunal that the "1996 incident" would pose no problem for the applicant if he were interrogated upon return to Iraq, may have reflected an unduly sanguine approach to that issue but raised no ground for review of the Tribunal's decision. 11 The Tribunal summarised as follows the account given by the applicant for his decision to leave Iraq: "In May 1998, [the applicant] states that one of his sons was stopped by two sons of prominent government officials as he drove across a bridge near the Presidential Palace. One of the men threatened his son with a gun and smashed his windscreen and other glass in the car. The Applicant stated that incident was a catalyst for leaving, as he realised that payment of money could not protect himself and his family. He decided to escape, but before he left he arranged for his sons to go to Basra and operate his hotels there, as it would be safer for them. He made a few more extortion payments and then escaped as he realised that it was only a matter of time before he was unable to meet the demands and would be framed and persecuted." 12 In respect of the foregoing the Tribunal said as follows: "It is plausible that the son's car was attacked, but the Tribunal does not accept that the attack had any immediate or ongoing consequences for the Applicant. If general insecurity and violence was part of his reason for leaving the country, the Tribunal is satisfied that the attack on his son's car contributed to his feeling of insecurity, but it is equally satisfied that the attack does not indicate there is a real chance the Applicant might be persecuted should he return to Iraq." 13 With regard to the matter of extortion and the applicant's fear of grave consequences if he refused or was unable to make payments as demanded, the Tribunal said as follows: "The Applicant's major reason for leaving Iraq was that he was the subject of extortion. Despite the constant demands for money, however, he was able to accumulate a very substantial property and share portfolio and he and his children continued to operate his businesses. His descriptions of himself as a well-known and wealthy businessman lead to the conclusion that his payment of bribes and donations to the Ba'ath Party and its officials were a necessary part of his strategy for success. While it may not be the Applicant's preferred way of doing business, the Tribunal is satisfied that the Applicant has significantly prospered during the Saddam regime and that any money he was required to pay to officials of that regime was a necessary element of succeeding in business. In those circumstances, such payment cannot be characterised as persecutory, but as a means to a desired, and successfully achieved, end." 14 It can be seen from the foregoing passage that the Tribunal accepted that extortion occurs in Iraq in the manner described by the applicant. The Tribunal did not discuss and, therefore, did not reject the applicant's assertion that resistance to such extortion brings imputation of opposition to the President or the ruling regime and the imperilment of personal or family safety. The Tribunal appeared to restrict its consideration to whether the acts of extortion described constituted persecution for the purposes of the Convention. Whilst the Tribunal acknowledged that the major reason for the applicant leaving Iraq was the extortion to which he was subjected, it ignored the substance of the applicant's claim, namely, that "it was only a matter of time before he was unable to meet the demands and would be framed and persecuted". On its face, that was an issue material to the applicant's case, and one that had to be determined by the Tribunal before the Tribunal could ascertain whether it was satisfied that the applicant had a well-founded fear of persecution. 15 Counsel for the applicant addressed that point by submitting that there was no evidence on which the Tribunal could make its findings of fact that "the payment of bribes and donations to the Ba'ath party…were a necessary part of [the applicant's] strategy for success" and that "the Applicant has significantly prospered during the Saddam regime". Therefore, it was submitted, ground for review of the decision arose under s 476(1)(g) of the Act in that the Tribunal had based its decision on facts that were not supported by evidence, being facts that did not exist. 16 The applicant submitted that the only evidence before the Tribunal was that the monies he had paid to the Ba'ath Party were monies extorted from him. There was no evidence he had offered a bribe or made a donation. Furthermore, the applicant submitted that there was no evidence to support the Tribunal's conclusion that he had "significantly prospered during the Saddam regime." 17 In an affidavit sworn by the applicant and tendered on the hearing of the application, the applicant deposed that his wealth had diminished under President Hussein's regime and that his property had been accumulated before President Hussein came to power. 18 If it could be said that the decision of the Tribunal that it was not satisfied that the applicant had a well-founded fear of persecution was based on the facts that the applicant had paid bribes and donations to the Ba'ath Party as a business strategy and had prospered by so doing, it may have been necessary to consider what evidence would be sufficient to disprove the existence of those facts. Although the foregoing passage in the Tribunal's reasons may imply that the Tribunal understood that the applicant had made payments to the Ba'ath Party voluntarily, the reasons as a whole show that the Tribunal accepted that the payments had been made in response to demands made upon the applicant. The Tribunal volunteered an opinion that the payments may have provided a collateral benefit for the applicant but it did not decide that the applicant had no fear of persecution because he was a person who had made payments of bribes and donations voluntarily. Accordingly, the ground relied upon cannot succeed. 19 The principal ground of the applicant's application for review was that the reasons of the Tribunal, taken as a whole, disclosed an error of law in that the Tribunal incorrectly interpreted the relevant law as to what constitutes a "well-founded fear of persecution", or applied that law incorrectly to the facts found by the Tribunal (s 476(1)(e)). 20 The substance of that ground as submitted by counsel was that there was substantial material before the Tribunal, none of it rejected, to the effect that a person of substance who left Iraq for the purpose of making an application for asylum in another country and who returned to Iraq after rejection of that application, would be at grave risk of harm as a person perceived to be an opponent of the regime and one who had engaged in a treasonable act. It was submitted that the finding of the Tribunal, that such a risk would not arise because the applicant could obtain another passport and re-enter Iraq as if he were returning to Iraq in the ordinary way, was illogical and nullified the decision-making process carried out by the Tribunal. 21 The relevant background is as follows. 22 The applicant stated that he obtained a passport illegally by payment of a bribe and used the passport to leave Iraq for Jordan. He then travelled to Malaysia and Indonesia. Whilst on board a vessel used to "smuggle" him from Indonesia to Australia, he was instructed to dispose of the passport and did so. 23 The Tribunal accepted that the applicant paid a bribe to an official to have the passport issued to him but stated that it was satisfied that the applicant had obtained his passport and left Iraq "legally". The Tribunal then set out the following reasoning and conclusions: "The Applicant denied that he still had access to his passport. The Tribunal has difficulty in believing that, but even if it is true, it notes that he was able to provide all of the required information to obtain that passport in the recent past and has no reason to doubt that he could again provide that evidence to obtain a replacement passport should that become necessary. In any event, as concluded below, even if he returns to Iraq without his passport and is questioned on return, the Tribunal finds he would not face a real chance of persecution." 24 Before determining if there is a logical foundation for those conclusions, it is necessary to look at the findings of the Tribunal on the conduct of the regime in Iraq towards its citizens, and to have regard to the further material to which the Tribunal referred in its reasons, without disapproval, that sets out the risks of persecution that arise in that country. 25 The Tribunal said as follows: "In summary, it is clear that Iraq is controlled by a one party dictatorship that acts at the behest of Saddam Hussein and his extended family. It has little regard for human rights and the security services act ruthlessly, arbitrarily and with impunity in putting down any real or suspected opposition across a spectrum of possible opponents ranging from individuals to people among the Shi'ite Muslims who comprise some 60 percent of the population. Another aspect of the situation for Iraqi citizens that is of some relevance in the immediate case is that family members of individuals who fall foul of the authorities are likely to be harmed on account of the individual's actions." and: "The Tribunal accepts that many people have been killed or otherwise persecuted in Iraq under the rule of Saddam Hussein and that the victims of such persecution may have included business people or others with whom the Applicant was acquainted." 26 Material before the Tribunal which demonstrated the degree of risk in returning a person to Iraq as a failed applicant for asylum included the following: "With regard to asylum seekers, it is Amnesty Internationals [sic] opinion that those who are known to have sought asylum abroad could be at risk of serious human rights violations upon their return. To our knowledge the Iraqi government has not agreed to a request by the United Nations High Commission for Refugees (UNHCR) for official guarantees that repatriated asylum seekers will not be at risk." (Amnesty International letter, 28 May 1997) "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 for treason is death… …It is generally agreed that monitoring of individuals and communities does take place, perhaps even via the refugee assessment agencies in Amman. It is our understanding that monitoring is undertaken in Australia." (Department of Foreign Affairs and Trade (DFAT) cable, 26 October 1997) "UNHCR is of the opinion that asylum seekers having applied for asylum abroad will be endangered in case of their return. If the Iraqi authorities have got the information that any Iraqi national returning to Iraq has sought asylum in a western country in particular, he will be interrogated and punished." (Country Information Report, 26 October 1997) "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 [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." (International Organisation of Migration Advice, 27 May 1998) "The Iraqi security authorities are suspicious and arbitrary in their treatment of suspect individuals. Interrogations are routine, and the security authorities are not bound by statute law. Punishments are harsh. Without access to cases of actual returnees, there is very little that can be said with any degree of certainty in relation to the possible treatment of different categories of returnees. Actual treatment of a returnee would likely be determined by the authorities' overall assessment of the case of the individual concerned. Seeking asylum, draft evasion, minor opposition activities in the past, relation to an opposition activist or refusal to join the Ba'ath Party might all be factors that would add to the Iraqi authorities [sic] negative view of an individual…" (DFAT Country Information Report, 3 November 1999) "I have no information how deported persons from Australia are received; I imagine such deportation is neither currently practised nor, indeed, possible directly to Iraq. However, deportation would surely raise enormous questions and place the individual directly in the hands of authorities. Since impugning the Iraqi state is a capital offence, the consequences could be death. No doubt, there would be a lengthy and probably harsh interrogation. There would be no guarantees of safety upon deportation. Indeed, since the current regime is one of arbitrariness and cruel, unusual treatment and punishments, I would suggest Article 3 of the Convention against Torture would preclude refoulement to Iraq." (J Packer, former Assistant to UN Special Rapporteur on the Situation of Human Rights in Iraq, Iraq Information Seminar for Refugee Status Determination Authorities, 24 February 2000) "…If you only focus on why do they originally leave, you won't understand the full picture or the basis, the situation which they're in. Because indeed the initial motivating reason for many people, especially in these last few years may not be that they themselves fear an immediate persecution on the basis of membership of a [sic] illegal party, or on the basis of membership of a minority – that alone would not be the case, would not have been the case. And still today it is not of itself the case. But in the process of leaving the country the practicalities of departing, or overstaying even a lawfully acquired set of documentation and so forth probably bribing, putting relatives at risk who are guarantors of return, for example and so forth and so on. In terms of practicalities and process they will have committed offences which (usually) are going to have grave consequences for them. If then they bring an asylum claim abroad, then they have consequences – let me give you an example of money. These are constraints, significant constraints on the possession of hard currency, foreign currency rather, in Iraq, I'm not sure what they are right now but they used to be that you could only possess a very limited amount of money. And you strictly cannot trade it, except through the official Governmental trade system. It is traded, it exists, it is all illegal – but officially you can't. Now if you're getting out of the country and going abroad you can't do it with the lawful possession of, I think it is something like more than 100 dollars, 100 US dollars. That means you will have committed serious offences, now when I say serious, according to a decree in 1994 the illegal trade of foreign currency also entails the death penalty. So merely going to someone through the black market to get 200 dollars, you are now subject to the death penalty. And you need 200 bucks, you need 200 bucks for bribes, and you need 200 bucks to survive in Jordan or wherever you're going to go. What are the consequences of this? On your family members, serious consequences. While you are abroad they will probably be supervised, scrutinised and if you have illegally over stayed your exit visa, they are in trouble and you are in trouble. On your return absolutely, I would say, you are subject to interrogation, I mean for illegal departure, for illegal return and so forth. This systematic form of interrogation entails (at a minimum) mistreatment and detention and often torture and may entail your death. It is just the nature of the regime." (J Packer, Seminar, 24 February 2000) 27 With regard to the foregoing and the situation of the applicant, the Tribunal found as follows: "The Tribunal does not accept that the Applicant's asylum application is known to the authorities. Not only is it confidential, it is totally in the interests of the Applicant and his family members to keep it confidential. The Tribunal concludes that nothing has happened in Iraq to indicate that the Applicant has left the country illegally, has made an asylum application or been absent for such a period as to suggest he has developed any dissident opinions. If he returns to Iraq the Tribunal is satisfied that the Iraqi authorities will not find out he has sought asylum in Australia and will not, as he fears, consider him a traitor for that reason. … If he has discarded his passport, the Tribunal is satisfied that he can satisfactorily explain to the authorities that it is missing and produce the requisite information to obtain a replacement document. While there is information available to indicate that returnees without documents may be at risk of serious mistreatment, in the context of the Applicant's history as a perceived supporter of the regime through making 'donations' or otherwise bowing to demands for money and his lack of any significant profile arising from his religion or political opinions, the Tribunal is satisfied that there is not a real chance the Applicant might number among such people." 28 The foregoing reasoning of the Tribunal was illogical. If the applicant discarded the passport he had obtained in Iraq by payment of a bribe, it is inconceivable that the applicant would make application to Iraq from Australia for the issue of a passport to replace the discarded document. Furthermore, if such an application were made, the circumstances described show that it could only be supported by statements that were false. There was no evidence before the Tribunal that the applicant had a passport in his possession. If Australia sought to return the applicant to Iraq without a passport, it would have to obtain travel documents from the Iraqi regime. At that point, on the material before the Tribunal, the risk of persecution of the applicant would appear to be more than fanciful. There was no material before the Tribunal that the applicant would be given travel documents to travel to, and be held safe in, a third country. The only conclusion reasonably open to the Tribunal was that if the applicant were returned to Iraq he would be returned "without documents", a situation the Tribunal appeared to accept involved for such a person the real risk of persecution for a Convention reason. 29 The reasoning of the Tribunal was based on a false premise and, therefore, the decision of the Tribunal was vitiated by a fundamental flaw. (See: Minister for Immigration and Multicultural Affairs v Sameh [2000] FCA 578.) The decision-making process miscarried by the Tribunal depriving itself of jurisdiction to make a determination as to whether it was satisfied as required by the Act. That error provided ground for review of the decision pursuant to s 476(1)(b), (c), (e) or (g) of the Act. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [154].) 30 A direction that the matter be returned to the Tribunal for reconsideration would not lack utility. The applicant, as a Shi'ite, is a member of a group which the Iraqi regime regards as harbouring persons potentially disloyal. If the regime became aware or assumed that the applicant had fled Iraq claiming to be a refugee, the Tribunal would have to decide whether there was a real risk that the applicant would be treated as a person who had dishonoured his country by making statements of disaffection in support of a claim for refugee status. Furthermore, as a person of substance obliged to contribute to the funds of the ruling party who may be perceived by Iraqi authorities to possess the capacity to influence others, the Tribunal would have to determine whether the risk of persecutory consequences for the applicant would be compounded thereby. If interrogation of the applicant were to occur – accepted as likely in all accounts before the Tribunal – the prospect of the use of torture and the consequences thereof, would have to be considered. 31 The decision of the Tribunal must be set aside and the matter returned to the Tribunal for reconsideration according to law. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: Counsel for the Applicant: H N H Christie Solicitor for the Applicant: Legal Aid WA Counsel for the Respondent: M T Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 October 2000 Date of Judgment: 9 February 2001