FEDERAL COURT OF AUSTRALIA "Applicant Z" v Minister for Immigration & Multicultural Affairs [2001] FCA 325 MIGRATION – application for review of decision refusing protection visa – failure of tribunal to consider how applicant could either collect passport or obtain a new passport – failure of tribunal to consider whether applicant should be returned through Jordan to secure effective protection found to exist in Iraq – whether tribunal in error of law being either an incorrect application of the applicable law or an incorrect application of the law to the facts – whether tribunal failed to observe procedures Migration Act 1958 (Cth) s 476 Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 at p 15, par 43, applied Al Mansour v Minister for Immigration & Multicultural Affairs [2001] FCA 58 at pp 9-10, par 28, applied Minister for Immigration & Multicultural Affairs v "C" [2000] FCA 845, referred to Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, referred to "APPLICANT Z" v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 109 of 2000 RD NICHOLSON J 30 MARCH 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 109 of 2000 BETWEEN: "APPLICANT Z" APPLICANT AND: THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 30 MARCH 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal dated 6 June 2000 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. 4. (a) The name of the applicant in this matter be kept confidential and not be disclosed other than to the parties, their legal advisers, or officers of the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal. (b) This application proceed under the name of Applicant Z v Minister for Immigration & Multicultural Affairs and the cover of the file be endorsed with the terms of this order 4. (c) No person, other than a party to these proceedings or their legal advisers, officers of the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal, be given access to any document filed in these proceedings without leave from a judge. 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 109 of 2000 BETWEEN: "APPLICANT Z" APPLICANT AND: THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 30 MARCH 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant seeks to review the decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of the respondent to refuse to grant him a protection visa. The application has been brought pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act"). The decision of the Tribunal in respect of his application was made on 6 June 2000. Relevant legislation 2 Under s 36(2) of the Act a non-citizen in Australia is eligible for a protection visa if that person is someone: "… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. 3 Article 1a(2) of the Convention defines a "refugee" to be any person who: "…owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it". Tribunal's findings of fact 4 The applicant's claims were as follows. He feared he would be executed if he returns to Iraq because: A. he refused to join the Ba'ath Party. B. he is a Sabean. C. he will be considered a dissident because he left the country. D. he will be imputed with dissident political opinions because he has disposed of his passport, has remained outside Iraq and has made an application for refugee status. 5 The Tribunal's findings were as follows. (1) The applicant is a 51 year old male who arrived in Australia by boat on 22 November 1999 without travel documents or permission to enter Australia. He is an Iraqi national. He is also of the Sabean (also known as Mandean) religion. He lived in Baghdad after being transferred there in 1979. He was a public servant until a short time before he left Iraq for Jordan. His wife was a teacher who resigned her position before she accompanied him to Jordan. (2) The applicant claimed to have a well-founded fear of being persecuted in Iraq for reasons of his religion. In his application he claimed he was harassed, for example, by being interrogated for three days in 1979 and by failure of police to act when he reported crimes. At the hearing he claimed he was prevented from practicing his religion because he was physically and verbally abused whenever he went to pray. The Tribunal considered this latter claim was a significant alteration in his claims. (3) The Tribunal found that Mandeans are a minority religion perceived to be "non-Arab". It found the Mandeans did not oppose the Government's edicts so that the Iraqi State did not discriminate against Sabeans. It found there was no acceptable evidence to support a conclusion that the applicant was targeted because he opposed the Government or that the Mandeans are a group that oppose the Government's edict. (4) The Tribunal did not accept he was transferred from department to department in the public service because of his religion. (5) The Tribunal was satisfied the applicant had fabricated that aspect of his evidence in which he mentioned that he was violently prevented from praying, this being an invention after his initial application was rejected. (6) The applicant also claimed that he had a well-founded fear of being persecuted for reasons of his political opinion in that he had at his workplace been pressured to join the Ba'ath party and had refused to do so. The Tribunal was satisfied that he had been asked to join that party, perhaps on many occasions, but his refusal did not attract any adverse consequences and did not add to any chance, however remote, that he might be persecuted should he return to Iraq. (7) As to his claim that his resignation from the public service was refused because of his religion or political opinions, this was not accepted by the Tribunal. It found that would run counter to his long history of public service and the direction given to him that he take responsibility, prior to retirement, for overseeing a major relocation of fuel stores. (8) As to a claim that his superior discriminated against him in that he had a fear of being blamed for stock deficiencies, the Tribunal found there was no detail in the applicant's evidence on which it could found a conclusion that such alleged discrimination was because of his religion or political opinions. The Tribunal was therefore satisfied he left his employment voluntarily and was not forced to leave for reason of his religion or political opinion. (9) As to the applicants claim that he was deprived of some benefits because of his departure before his resignation, the Tribunal found this was unrelated to his religion or political opinions because it was clear that it was his failure to complete the formalities of resigning that resulted in loss of some rights. (10) The applicant also claimed that his cousin was killed in 1992 in a dispute over a car which was desired by the son of an army officer and that the army officer was some how implicated in that death. The Tribunal found that the applicant did not face a real chance of persecution for a Convention reason as a result of this incident should he return to Iraq. Furthermore, it did not accept a claim made by him at the hearing, but not in his initial submissions, that the perpetrator of the 1992 crime was a General (not a Colonel) and that his men had abducted the applicant and sexually tortured him for a period of two months. The Tribunal was satisfied the applicant had fabricated that aspect of his claims. (11) As to the applicant's claims of inaction by police: The shooting of another cousin in 1993 during a robbery attempt in his jewellery shop and inaction by the police in relation to it did not indicate that anything happened to the applicant so that he did not face a real chance of persecution because of it should he return to his country of nationality. (12) Likewise, the failure of police to act on a report by the applicant that his car had been stolen. The Tribunal was satisfied that the State agencies did not discriminate against Sabeans and finds that the failure to return the applicant's stolen property was unrelated to his religion. (13) In relation to the applicant's claim that his daughter had been harassed, it was accepted by the Tribunal it was plausible she had been followed by a man who tried to pressure her to get into his car. It found the applicant's claim that such incidents were part of a pattern of harassment by Muslims directed at Sabean girls was unsupported by independent information. (14) The applicant claimed he faces persecution because he left the country illegally, remained abroad for a significant period and sought asylum in a western country. In respect of the departure he claimed to have paid significant bribes and changed his occupation and that of his wife for the purpose of obtaining their passports. The Tribunal was satisfied the applicant applied for and was issued with passports for himself, his wife and three children and he provided truthful information when he applied for and was issued with those documents. It found he used the passports to obtain an exit visa and then cross the border into Jordan without any harassment. It was also satisfied that he and his family legally departed for Jordan to the knowledge of Iraqi authorities. The Tribunal additionally found that if he paid bribes as claimed, the payment was unrelated to his religion or political opinions. (15) The Tribunal was satisfied that the applicant was not perceived to have held a sensitive position that warranted investigation or punishment on return to Iraq. It found he was a low-level clerk in the "Department of Storage". (16) The Tribunal further accepted the deportation from Australia, if it occurs, would place the applicant directly in the hands of the authorities. In such circumstances it found there would be an increased likelihood that he would be seen as someone who had impugned the Iraqi State. It accepted a view that this at least would mean lengthy and harsh interrogation. (17) As to the absence of a passport, the Tribunal found there was no reason to doubt that the applicant would again provide adequate evidence to obtain a replacement passport should that become necessary. (18) The fact that the applicant has rung his brother in Iraq and that his brother knew where he was did not provide a basis for any well-founded fear because the Tribunal did not consider the applicant's brother would spread the news that the applicant was in Port Hedland seeking asylum. (19) The fact that the applicant had appeared on television news with the respondent during a visit to Port Hedland in February or March 2000 created only a very remote possibility the applicant would be identified as an asylum-seeker. (20) The Tribunal was satisfied the applicant's relatives had not been harassed in Iraq. (21) The Tribunal therefore did not accept that his asylum application was known to authorities. There was nothing which had happened in Iraq to indicate the applicant had left the country illegally, had made an asylum application or been absent for such a period as to suggest any dissident opinions. Furthermore, the Tribunal found there was nothing in his religion, his personal history, his mode of leaving Iraq or the consequences of his departure for his relatives in Iraq to suggest to the authorities that he opposes the Government. It was therefore satisfied his application for a protection visa in Australia remains confidential. (22) Accepting there was information available to indicate that some returnees may be at risk of serious mistreatment the Tribunal was satisfied there is not a real chance the applicant might number among such people. This was because of the applicant's history as a public servant and his lack of any significant profile, the legal character of his departure and his non-prolonged absence from the country. 6 The Tribunal therefore found that the Iraqi authorities do not perceive the applicant to have any dissident political opinions and he does not face a real chance of persecution for that reason. He was therefore not a person to whom Australia has protection obligations and does not meet the criterion for the purposes of grant of a protection visa. 7 The result of these findings then as applied in relation to the applicant's claims A –D above were that the Tribunal found: (i) although the applicant has a subjective fear of persecution that fear is not well founded as there is not a real chance of persecution for a convention reason; (ii) as to (B), there is no reason why the applicant would be suspected of opposition to the regime on account of his religion and Iraqi state agencies do not discriminate against Sabeans; (iii) as to (A), the applicant was not imputed with a dissident political opinion because he refused to join the Ba'ath Party; (iv) as to (C), the applicant applied for and was issued with passports for himself, his wife and three children. Grounds of review 8 Although the application as filed specified four grounds of review, at the hearing these were consolidated into the one ground. That ground maintains that the Tribunal erred in failing to consider certain critical evidence which went to demonstrate that the applicant will face a real chance of persecution for imputed political opinion and so involved the decision in error of law in accordance with either of the limbs of s 476(1)(e) of the Act or a failure to observe procedures in accordance with s 476(1)(a) in application of the requirements of s 430(1)(c) of the Act. 9 What this means is that the Court is required to address grounds of review (iii) and (iv) of the grounds in the application. A sub-ground in (iii) is that the Tribunal erred in law, or incorrectly applied the law to the facts, in failing to consider that the applicant faces a real chance of persecution if returned to Iraq because the Iraqi authorities will become aware that the applicant is likely to have applied for asylum in Australia. Ground (iv) is that, alternatively, the Tribunal failed to make a finding or findings on a material or material of questions of fact, namely whether the applicant has a well-founded fear of persecution for reasons of imputed political opinion not on account of the present ignorance of the Iraqi authorities that he has applied for asylum in Australia but because those authorities will become aware on his return that he has so applied. 10 The facts relied upon in the grounds as being findings likely to lead to knowledge of that applicant are: (a) the applicant will be returned to Iraq from Australia; (b) the applicant will be without his original Iraqi passport; (c) the applicant, his wife and children departed Iraq not for Australia but for Jordan (through lawful channels); (d) the applicant's family remain behind in Jordan; (e) removal from Australia will place the applicant directly in the hands of Iraqi authorities so the applicant may be subject to lengthy and harsh interrogation. Contentions for the applicant 11 The argument for the applicant is developed in this way. It is not maintained the Tribunal failed to address the issue of the applicant's refoulement to Iraq. On the contrary, the Tribunal accepted that country information demonstrated that "deportation" from Australia would place a person directly in the hands of authorities so that there would be an increased likelihood he would be seen as someone who impugned the Iraqi State. 12 However, it is contended for the applicant that there was nevertheless a failure to consider the mode and the effect of the return. It is submitted that when the Tribunal concluded that if the applicant returned to Iraq the authorities would not find out he has sought asylum in Australia and will not, as he fears, consider him a dissident, it addressed narrow issues of past conduct and did not have regard to other evidence. The issues of past conduct were the disposal of the passport and the issue of the appearance on television news. 13 The matters which it is said the Tribunal did not have regard to were, firstly, how the applicant could be returned to Iraq and would he be returned via Jordan? If he returned to Jordan, would he be returned by Jordan to Iraq? Secondly, precisely how would he be received by border guards? Thirdly, what would be the position of his wife and children in Jordan? Fourthly, what would be the effect of the fact that he was being removed from Australia? 14 It is said the approach adopted by the Tribunal involved a misapplication of the law to the evidence because it involved a failure to appreciate that the factors enumerated were required to be addressed for the Tribunal properly to reach a view on the requirements of the law in relation to the issue of "real chance". This is said to have occurred in the context where the country information as accepted by the Tribunal supports the view that asylum seeking by an Iraqi citizen is an act against the Iraqi state, so that the applicant is at risk of being found to have done an act which imputes to him a political opinion. 15 It is submitted for the applicant there are other factors relevant to the resolution of these contentions. The first is that there was evidence before the Tribunal that Iraqis who undertake officially-sanctioned travel are required to report to an Iraqi Embassy Consulate in their country of destination upon arrival to register their names and addresses and all Iraqis residing abroad are required to register every six months, reporting address changes and notifying departure. Additionally, there was evidence that it was considered doubtful that those who deliberately destroyed their passports or other identity documents overseas would approach an Iraqi Embassy to replace them. In this context it was said that no consideration had been given by the Tribunal to whether the applicant's passport would have stamps or other indications which would alert authorities to his position. It is submitted this can be considered by the Court without impugning the finding by the Tribunal that the applicant would be able to provide adequate evidence to obtain a replacement passport should that become necessary (finding 17 above). Also in relation of the Tribunal's finding (number 22 above) that the applicant had not had a prolonged absence from Iraq, he had now been absent over a year. 16 These were circumstances which, together with those earlier relied upon, are ones on which it was necessary for the Tribunal to have made findings, as material questions of fact. The contention is that the Tribunal failed to address this critical evidence relating to knowledge by Iraqi authorities of his application for refugee status. 17 Finally, it is submitted that it is not known whether the protection the Tribunal finds Iraq will give the applicant means that Australian authorities will fly the applicant directly to Baghdad or whether the applicant would be returned to Iraq via Jordan. It is submitted that if he returned through Jordan there is no evidence about whether the applicant would be permitted access to Iraq through Jordan. Contentions for respondent 18 For the respondent it is submitted that the critical material fact in relation to which the Tribunal was required to set out its findings and refer to the evidence or other material on which the findings of fact were based – s 430(1)(c) and (d) of the Act - was whether the Iraqi authorities would have knowledge that the applicant had sought asylum in Australia. Because the Tribunal chose to address this material issue, it clearly took the view that the seeking of asylum could lead to the imputation of political opinion. The other circumstance on which it relied was the absence of the applicant from Iraq for a marked period of time. 19 It is contended for the respondent that the ground of review based on s 476(1)(e) must, in the light of the submissions for the applicant, be understood as pressed in relation to involving an incorrect application of the law to the facts and not an incorrect interpretation of the applicable law. It is said this ground of review can only be made out if, having regard to all of the findings of fact made by the decision-maker, the correct application of the law to those findings of fact could not, as a matter of law, result in the decision which was made by the decision-maker. 20 It is said that in relying on the factors (a) - (e) above this ground is not pressing either an incorrect interpretation or an incorrect application of the law within s 476(1)(e) of the Act. Rather the applicant is inviting the Court to undertake a review of the merits of the Tribunal decision which is not permissible. 21 Furthermore, it is submitted that the examination of the way the Tribunal went about reaching its finding number (21) and related findings above does not disclose any incorrect application of the law to the facts. 22 As to the alternative ground of failure to comply with s 476(1)(a) by not observing the requirements of s 430(1)(c) and (d) it is said the Tribunal's reasons, conforming with those statutory requirements, set out the actual reasons for coming to the decision, the findings of fact made and the material upon which those findings were based: Minister for Immigration and Multicultural Affairs v "C" [2000] FCA 845 [44]. There is no requirement imposed by those sections to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision reached: Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469. 23 Furthermore, the Tribunal did not accept that the applicant would be deported from Australia without his original Iraqi passport. It was satisfied he had made provision to collect his passport later if necessary even if he gave it to the agent who helped him come to Australia and had no reason to doubt he would again provide adequate evidence to obtain a replacement passport should that become necessary. That is the subject of Tribunal finding (17) above. Consequently it is submitted the Tribunal appears to have accepted that the applicant could return to Iraq on his own passport so that it would not be necessary for him to be deported from Australia. Thus there would be an avoidance of the risk of him being placed in hands of authorities and facing lengthy and harsh interrogation. It is also open to the applicant to avoid any adverse impacts of deportation by voluntarily returning to Iraq. Resolution of contentions 24 The context of the Tribunal's reasoning for finding (17) set out above was as follows: "The Applicant had a valid passport that he claims was taken from him by the smuggler. First he told the Tribunal it was taken from him in Malaysia and then in Indonesia. He said he had not made any arrangements about his passport in the price he paid to get to Australia and, in those circumstances, it is odd that he would hand over such a valuable document without some arrangement as to its fate. It is also odd that the smuggler would take it and then return to give the Applicant a photocopy that could then be used by any government to place the original document on international alert lists. The Applicant also arrived in Australia with copies of other vital documents of identity, such as his family card, his driver's licence and his nationality and marriage certificates. The Applicant has not been a completely truthful witness and his story about how he disposed of his passport is not convincing. The Tribunal is satisfied that the Applicant has made provision to collect his passport later if necessary, even if he did give it to the agent who helped him come to Australia. In any event, it notes that he was able to provide all of the required information to obtain that passport in the recent past and he has a photocopy of that document and other documents of identity. It has no reason to doubt that he could again provide adequate evidence to obtain a replacement passport should that become necessary." 25 It is not apparent on what evidence the Tribunal became satisfied that the applicant had made provision to collect his passport. A challenge to this finding on the basis of no evidence was not pursued on behalf of the applicant. Presumably this was because once the Tribunal disbelieved the applicant's account that he disposed of his passport to a smuggler, the inference was open that he did not dispose of it and that he could if he wished collect it. 26 Nor is there any challenge on the basis of no evidence for the Tribunal's conclusion that it had no reason to doubt that the applicant could again provide adequate evidence to obtain a replacement passport should that become necessary. 27 However, in neither case did the Tribunal address either how the applicant would collect his passport from the agent or, if it became necessary to obtain a replacement passport, how he could achieve that goal and so secure the effective protection of Iraq to which the Tribunal had found was there available to him. Additionally, the Tribunal did not consider whether that effective protection could only be secured were the applicant to be returned via Jordan. 28 The position is that 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. Only if the applicant was in fact able to either collect his passport or secure a new passport would it be reasonably open to the Tribunal to conclude that it would be safe for the applicant to return to Iraq. It therefore became critical in the circumstances and a highly material fact for the Tribunal to determine how, if at all, the applicant could achieve either of those steps and, having done so, how he could be returned in a manner which would secure the effective protection of Iraq. The consequences were absolutely vital for the applicant. There was abundant evidence before the Tribunal demonstrating the degree of risk in returning a person to Iraq as a known failed asylum seeker with the consequences of torture and death inherent. 29 In my view the Tribunal was obliged in the particular circumstances to address and properly consider these issues. Its failure to do so indicates that its decision involved an error of law, being either an incorrect application of the applicable law by failing to appreciate that in the circumstances those issues were ones which the applicable law required to be addressed or an incorrect application of the law to the facts as found by the Tribunal by being satisfied upon those facts that the applicant could secure the effective protection in Iraq without the need to address those additional issues. I am also of the view that, because the applicable law required in the particular circumstances those issues to be addressed, the Tribunal failed to comply with s 430(1)(c) by not setting out its findings on the material facts represented by those issues or with s 430(1)(d) by not referring to the evidence or other material on which such findings of fact were based. A failure to comply with those subsections amounts to a failure to observe a procedure required by the Act to be observed in connection with the making of the decision so as to give rise to the ground of review available under s 476(1)(a). See in respect of each of these grounds: Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 at p 15, par 43 and Al Mansour v Minister for Immigration & Multicultural Affairs [2001] FCA 58 at pp 9-10, par 28. 30 No case was made for the applicant that the Tribunal failed to apply the applicable law in that it did not have due regard to the possible application of Article 33 of the Convention in favour of the applicant due to his prior residence in Jordan and the continuing residence of his family there. It may be (although it plays no part in the resolution of this application) that such aspect would require addressing on any further consideration of the application. Conclusion 31 For these reasons I consider that the decision of the Tribunal should be set aside and the matter remitted to it 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 RD Nicholson. Associate: Dated: 30 March 2001 Legal Aid Counsel for the Applicant: Mr R Lindsay Solicitor for the Applicant: Legal Aid Commission of Western Australia Counsel for the Respondent: Mr LA Tsaknis Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 October 2000 Date of Judgment: 30 March 2001