W104/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 771

FEDERAL COURT OF AUSTRALIA

"W104/00A" v Minister for Immigration & Multicultural Affairs [2001] FCA 771 MIGRATION – application for a protection visa – grounds for review not made out. Migration Act 1958 (Cth) ss 5, 36(2), 65, 424A, 424A(3), 430, 476, 476(1), (a), (b), (c), (e), (g)

Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 referred to Abebe v Commonwealth of Australia (1997) 197 CLR 510 referred to Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264 referred to Tharairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 referred to Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 applied Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 referred to "W104/00A" v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 104 OF 2000 LEE J PERTH 22 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 104 OF 2000

BETWEEN: "W104/00A"

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 22 JUNE 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: The application be dismissed with costs. 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 104 OF 2000

BETWEEN: "W104/00A"

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 22 JUNE 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which "affirmed" a decision of a delegate of the respondent ("the Minister") that a protection visa not be granted to the applicant. 2 The applicant arrived in Australia on 31 August 1999 and has been held in "immigration detention" thereafter. On 15 November 1999, he lodged an application for a protection visa. Grant of the visa was refused by a delegate of the Minister on 12 January 2000 and the applicant applied to the Tribunal for review of that decision. The Tribunal made its decision on 13 June 2000. 3 Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. 4 Section 36(2) of the Act provides that: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 5 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967). The term "protection obligations" is not defined in the Convention or the Act. 6 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees". Article 1(A) of the Convention provides: "For the purposes of the present Convention, the term 'refugee' shall apply to any person who: … (2)…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;…" Exceptions to, or cessations of, the operation of the foregoing are set out in, inter alia, Articles 1(C), 1(D), 1(E) and 1(F). 7 As a Contracting State, Australia has undertaken the obligations imposed on Contracting States by the Convention. Numerous obligations in respect of refugees are set out in the Convention, including undertakings by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. The foregoing may come within "protection obligations" as that term is used in subs 36(2) of the Act but the specific protection obligation undertaken by Australia is that contained in Article 33, namely, not to expel or return (refoul) a refugee in any manner whatsoever to the frontiers of territories where the life or freedom of the refugee would be threatened for any of the foregoing Convention reasons. In acceding to the Convention on 22 January 1954, Australia did not accept the obligations set out in Article 32. 8 The Tribunal recorded the applicant's claims as follows: "…the applicant stated that he had been born in Kuwait in 1974 but that his father and grandfather were Iraqis. His father had moved his family to Kuwait in the early 1970s where they had passed themselves off as Kuwaiti Bedoun (nomads of Kuwait with no citizenship but who were entitled to free Kuwaiti services such as education and medical care). In 1990, after the Iraqis invaded Kuwait, he and his family had left that country and travelled through Iraq into Iran where they had stayed (and he had legally married in 1999) until he had left Iran to come to Australia in July 1999. He said that he had bought a false Iraqi passport in his name which he had thrown into the sea while travelling with other boatpeople to Australia. The applicant said that his family had obtained legal Kuwaiti documents to enable them to leave Kuwait for Iran in October 1990. In 1991, the family had applied to return to Kuwait but Kuwait had refused permission for them to do so because they were Iraqis. The family had continued to live in Iran illegally; they had no green card. Due to being prevented from returning to Kuwait, they had thought about going to another country from Iran. About two years ago, he had heard that there was a way of getting to Australia through Indonesia, so he had been planning his exit from Iran ever since. He wanted to come to Australia because there was no war here and because it freely accepted migrants. He did not want to return to Iran or Iraq for a number of reasons. 1. He had heard of another Iraqi family who had asked for permanent residence in Iran and had been arrested by the Iranian authorities and sent to northern Iraq, and he feared that the same fate would befall his family if they applied to stay in Iran. So the family had moved to Khuzestan in Iran where there was less checking by the authorities for illegal migrants. 2. Because of being in Iran illegally they could not get 'decent' jobs or send children to school. This was the main problem. 3. Because the future for illegals in Iran was uncertain and his family had been afraid that at any moment the Iranians would arrest them and deport them to Iraq. 4. The lack of 'stability' in Iran had prevented the applicant from 'finalis[ing]' his marriage [the applicant had initially described himself as being engaged but later said in a statement prepared by his adviser that he had been 'legally married' but had not 'consummated' the tie or had any celebration given his impending departure for Australia; his wife was Iraqi too]. 5. Return to Iraq was impossible because: [T]here are sanctions against Iraq and there are numerous problems inside Iraq. It may be possible for me to return but my father fled the Iraqi army during the Iran/Iran [sic] war and if we return to Iraq they would enlist my brothers and myself in the Iraqi army…This is the persecution I am going through at the moment…If I return to Iraq it is possible that I may be arrested and people know about the miserable conditions that the Iraqi people are going through…like famine and the spread of diseases and lack of medical care. That's all. … If I am returned to Iraq, I believe the authorities there would harm me because of my father's desertion of the army and because of my grandfather's involvement in opposing the Iraqi government. Also, I fear persecution as a Shi'a. … At the hearing, the applicant made new claims concerning his father and grandfather. He said that grandfather had been a Shi'a Muslim cleric at a mosque in Iraq and had been a deputy of Imam Sadr who had founded the Shi'ite Al-Da'wa Party which had been harshly repressed by the secular ruling Ba'ath Party. The grandfather had been arrested in 1973 when the authorities had begun cracking down on Al-Da'wa and had been freed in 1975. He had died a month later as a result of the mistreatment he had suffered in prison. Asked whether his father had suffered any problems in Iraq, the applicant said that the father had had no problems other than being wanted by the Iraqi authorities on suspicion of being involved with his grandfather, in anti-government activities with al-Da'wa. When asked why, in that case, his father had not returned to Iraq in 1975 when his grandfather – apparently the main focus of official attention, the father only being targeted by association – had been freed and it thus seemed evident that the authorities had ended their punishment of the grandfather, the applicant then claimed that the father himself had been wanted by the Iraqi authorities in 1973 over political activities. The authorities had come to his house to arrest him but he had been in hiding and had escaped to Kuwait. Some of the father's friends had been executed." 9 In the written statement provided by the Tribunal pursuant to s 430 of the Act, the Tribunal stated under the heading "Findings and Reasons": "I accept the applicant's claim that he is the son and grandson of Iraqi citizens who has Iraqi nationality by virtue of this relationship. … I accept the applicant's claim to have been born in Kuwait when his family moved there in the early 1970s, to have lived there until 1990, and to have gone to Iran and lived there until July 1999 when he departed for Australia. I accept that the applicant cannot return to live in Kuwait due to being an Iraqi citizen with no real claim on Kuwait. I accept that he would find it very difficult or impossible to return to Iran even though the rest of his family still lives there since he does not have Iranian citizenship or, apparently, possession of any permits allowing him re-entry to Iran, and because Iran, weighed down with the costs of hosting millions of refugees from Iraq and Afghanistan, could be reluctant to allow back in someone like the applicant who has left the country for his own purposes, viz. to seek residence in another country." 10 The substantive reasons for the decision were as follows: "On the face of the matter, I am not satisfied that the applicant faces persecution in Iraq since his evidence shows he has never been there (bar spending half a day there in 1990 en route to Iran). It is implausible that the Iraqi authorities would seek to harm someone who has not been a person of concern to them and who has lived in other countries all his life. There is nothing in the applicant's evidence to show that he has been engaged in activities abroad that would have brought him to the attention of the Iraqi authorities. There is no evidence that the applicant has been involved in dissident activity or violence or that he intends to begin such activity in the future. For these general reasons I am not satisfied that the applicant faces any real chance of persecution in Iraq." 11 On the hearing of the application, the applicant was represented, and the Court assisted, by pro bono counsel appointed by the Court pursuant to O 80 of the Federal Court Rules. The grounds of the application for review were that: there was no evidence or other material to justify the making of the decision (s 476(1)(g)); there was a failure to comply with the procedures required by the Act to be observed by the Tribunal pursuant to s 424A of the Act (s 476(1)(a)); there was a failure to comply with the procedures required by the Act to be observed pursuant to s 430(1) of the Act (s 476(1)(a)); and that the Tribunal erred in law in failing to ask itself the correct question and apply correctly the relevant law (s 476(1)(e)). 12 The applicant's claim in essence was that by reason of his adherence to the Shi'ite religion, his grandfather's opposition to the Ba'ath Party, and his father's desertion from the Iraqi army, his family was marked by Iraqi authorities as an "opposition family". 13 The Tribunal considered a range of information on the situation of Shi'ite followers in Iraq and concluded that there was no real risk that Shi'a per se faced persecution in that country. In forming that conclusion, the Tribunal had regard to whether there was a risk of persecution by reason of the "religious beliefs" of Shi'a. If, in truth, the Tribunal had limited its consideration of relevant matters to that aspect of persecution, it would have failed to address all relevant matters raised by the applicant's application. That is to say, the Tribunal also had to determine whether Iraqi authorities imputed to Shi'ite followers a political opinion of opposition or hostility to the Ba'athist regime in respect of which the authorities could undertake activities of surveillance and seek to suppress such opinion by indiscriminate acts of violence against Shi'ite personnel. 14 Although the Tribunal did not state that it had given regard to such an issue in those terms, it did conclude from its examination of material available in respect of the state of affairs in Iraq that to be a Shi'ite in Iraq did not present any real risk that persecutory treatment would be suffered by such a person unless there had been participation in political activity by way of rebellion or insurrection. 15 Furthermore, the Tribunal did not accept that the applicant's father or grandfather had attracted the attention of Iraqi authorities for any political activity. 16 Counsel submitted that the Tribunal's remarks on the applicant's account of his father's and grandfather's experiences in Iraq displayed a cynical approach. Perhaps the ready dismissal of the whole of the applicant's claims in that regard, on the basis that they had been "elaborated" by the applicant at successive interviews, left room for that suggestion. But even if that were so, the ultimate conclusion of the Tribunal was that there would be no risk of persecution facing the applicant in Iraq even if the applicant's father had been a deserter from the Iraqi army twenty-five years or so earlier. It was further implied in the Tribunal's conclusion that if the grandfather had been a Shi'a Muslim cleric, who almost thirty years ago, had been ill-treated by Iraqi authorities for his opposition to the Ba'ath Party, no connection of the applicant to those activities would be made by Iraqi authorities. 17 It may be that another mind considering the same material would not have concluded that the only Shi'a in Iraq exposed to the risk of persecution were those who carried out acts of rebellion or insurrection. It was, of course a matter for the Tribunal as long as there was some material able to support the conclusion as there was in this case. 18 It may be said, therefore, that the Tribunal gave due consideration to all possibilities notwithstanding that it had not been persuaded by the applicant's account that some of those possibilities were past facts. (See: Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 575-576; Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [83].) 19 In so far as the applicant submitted that the Tribunal had erred in making its decision when there was no evidence or other material to justify the making of the decision, all of the particulars of that ground related to matters recited by the Tribunal as those which caused it to conclude that the account provided by the applicant was not credible. None of those elements grounded the ultimate decision that the applicant was not a person to whom Australia had protection obligations under the Convention and, therefore, s 476(1)(g) of the Act provided no ground for review. (See: Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264 (Full Court) at [15].) The matters referred to by the Tribunal were explanations provided by the Tribunal as to why it was not persuaded by the applicant's account that past events had occurred as described by the applicant. 20 As it was bound to do, the Tribunal proceeded to consider whether there was, nonetheless, a risk that the applicant would be persecuted in future if events had occurred as described by the applicant. Not being satisfied that there was such a risk, the Tribunal made the ultimate determination that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the treaty. 21 For the foregoing reasons the first ground of appeal must fail. 22 With regard to the second ground of appeal, the "information" said by the applicant to attract the operation of s 424A of the Act displays on its face that it was material of a general nature relating to affairs in Iraq. Therefore, it followed that such information fell within the exception described in s 424A(3), not being information "specifically about the applicant". Therefore, the preceding provisions of s 424A had no application. The information described was relevant to issues raised by the applicant in his claims but none of the material contained therein referred to the applicant. 23 That ground also must fail. (See: Tharairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 at [15]-[16].) 24 The third ground of appeal submitted that the Tribunal failed to comply with the procedures required by the Act to be observed in that "the Tribunal failed to give reasons for preferring the information it relied upon". That argument was rejected in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [46] and subsequent to the hearing in this matter the High Court has made it clear that such an argument is untenable. (See: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30.) 25 The final ground of appeal amounted to a submission of "jurisdictional error" involving either s 476(1)(b), (c) or (e) as the ground for review. (See: Yusuf per Gleeson CJ at [10], per McHugh, Gummow and Hayne JJ at [76]-[83].) It was submitted that such an error had occurred in that the Tribunal failed to ask itself the correct question and wrongly applied the test for a well-founded fear of persecution. 26 The particulars of the ground set out in the application for review suggested that the Tribunal had not considered relevant matters in determining whether there was a real risk that the applicant would suffer persecution if returned to Iraq. Only one of those particulars raised an issue of substance, namely, did the Tribunal fail to consider whether a real risk of persecution of the applicant arose if he were returned to Iraq by reason of the applicant having sought asylum in Australia. 27 Part of the country information put before the Tribunal was to the following effect: "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 constitutes 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." (IOM Advice of 27 May 1998, CX 29911) "[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." (DFAT Cable AM2244 of 26 October 1997, CX 26100) "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." (CIR 517/97 of 26 October 1997, CX 26057) 28 The Tribunal would have been aware also from well-known information to that effect that "interrogation" in Iraq presents the real risk that the party interrogated will be tortured, being at risk of persecution for the perceived political opinion of opposition to the regime. 29 In its reasons the Tribunal said as follows: "Neither am I satisfied that the applicant, as his adviser submits, would be persecuted for having sought asylum overseas. DFAT states that: If it became known that an Iraqi had applied for refugee status in Australia, the [Iraqi Government] reaction would depend on what claims the applicant had made, how publicly, and whether they reflected badly on the [Government]. Criticism of the government (other than on minor administrative and economic matters) – particularly criticism of President Saddam Hussein and his family – is not tolerated in Iraq and the consequences can be severe. - DFAT cable AM1669 of 12/12/96, CX20934 I accept the burden of this advice. However, I do not consider that it substantiates the adviser's claims that the applicant would be persecuted. His claims have not been made public; they are vague, unsatisfactory individual claims regarding his family 25 years ago and a general claim regarding Shi'as that I find lacks substance in this application; they do not concern President Saddam's family. More importantly, I am not satisfied that the applicant is regarded with hostility in Iraq for the reasons he claims and therefore I am not satisfied that his attempts to remain overseas will be treated any differently from those of the millions of Iraqis who have sought to find comfort overseas and who the Iraqi authorities are anxious to have back to reverse the brain drain. The following independent evidence gives a fuller dimension than the DFAT cable quoted above to an appreciation of whether someone such as the applicant – who I have found is not wanted by the Iraqi authorities – would be at risk for having applied unsuccessfully for refugee status. An Australian government agency interviewed by the Department's Country Information Service states: [I]f refugee status applicants have not been involved in genuine dissident activity in Iraq or with a major opposition group outside Iraq, then they should be able to return to Iraq without fear of death or harsh retaliation…The fact they have applied for refugee status in Australia should not prove detrimental to their future in Iraq. - CIR Report 17/97 of 17/12/96, CX21327 DFAT states: We could obtain no confirmation of the story that the Iraqi regime regards refugee and asylum applicants as political traitors…in practice, the consequences for a failed asylum seeker on return to Iraq might depend very much on the actual history of the person concerned and the profile that his case had received in the country in which asylum was sought. A known asylum seeker on return might expect, at a minimum, to be questioned, but this is a fairly routine matter in Iraq anyway. - DFAT cable AM2439 of 4/3/98, CX29669 Information regarding the ease of return of Iraqis who have migrated and taken out citizenship of another country, appears to conflict with 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. - DFAT cable AM2244 of 26/10/97, CX26100 … However, I do not accept that the applicant would be viewed as such a person. As stated before, he has no political profile and is not a person of concern to the authorities. There is no evidence that he has harmed the Iraqi Government in any way. In such circumstances I consider that DFAT's advice would fit the applicant: that it would be 'highly improbable' that the act of having sought asylum in another country (if indeed the Iraqi authorities were to hear of it) would in itself be met by persecution, that given the volume of illegal departures and forged documentation, not every case would be of interest and that the Iraqi authorities are aware that the overwhelming majority of illegal departures are for personal rather than for political reasons (Refugee Claims Relating to the Treatment of Iraqis, Country Information Report No. 387/99 of 3/11/99, CX38491)." 30 It must be concluded that the Tribunal addressed the relevant issue and determined that the applicant faced no real risk of interrogation or torture and thus no real risk of persecution by reason of any political opinion implicit in his application for asylum in this country. 31 The Tribunal having considered the matter in the terms recited above, no argument can be sustained that the Tribunal failed to take into account a relevant consideration. That the Tribunal, differently constituted, may have formed a contrary conclusion as, indeed, it has done on other applications by Iraqi nationals that raise the same issue, does not make out the ground relied upon. 32 That ground too must fail and the application for review must be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.