FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v "Applicant Z" [2001] FCA 1447 MIGRATION – appeal from decision remitting matter to Refugee Review Tribunal – Tribunal found applicant did not have a well-founded fear of persecution on any Convention ground – whether Applicant Z could have a well-founded fear of persecution based on his leaving Iraq, remaining abroad for a significant period and applying for refugee status in Australia – Tribunal found that illegal departure and prolonged absence from Iraq could result in persecution on return to Iraq – removal from Australia would place Applicant Z directly in the hands of Iraqi authorities – whether Tribunal committed jurisdictional error or error of law – whether Tribunal addressed all matters necessary for its decision to be a real exercise of its jurisdiction Migration Act 1958 (Cth) ss 476(1)(b), 476(1)(e) Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 considered MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v "APPLICANT Z" W 123 of 2001 HILL, O'LOUGHLIN & CARR JJ 16 OCTOBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 123 OF 2001 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant AND: "APPLICANT Z" Respondent JUDGE: HILL, O'LOUGHLIN & CARR JJ DATE OF ORDER: 16 OCTOBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The order of the learned primary Judge that the matter be remitted to the Tribunal for reconsideration according to law be varied by adding the following sentence: "In the event that there is a dispute over the constitution of the Tribunal that is to determine the matter, the parties have liberty to apply on that issue." 3. The appellant pay the costs of the respondent. 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 123 OF 2001 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant AND: "APPLICANT Z" Respondent JUDGE: HILL, O'LOUGHLIN & CARR JJ DATE: 16 OCTOBER 2001 PLACE: PERTH REASONS FOR JUDGMENT THE COURT: 1 The appellant, the Minister for Immigration and Multicultural Affairs (the "Minister"), appeals from a judgment of a judge of this Court setting aside a decision of the Refugee Review Tribunal (the "Tribunal"), which had affirmed a decision of the Minister to refuse to grant to the applicant (referred to here as "Applicant Z") a protection visa, and remitting the matter to the Tribunal for reconsideration in accordance with law. Background to the appeal 2 Applicant Z is a national of Iraq who arrived in Australia by boat on 22 November 1999 and thereafter applied for a protection visa. It is a criterion for a protection visa that the person applying for that visa be a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as affected by the 1967 Protocol Relating to the Status of Refugees, here compendiously referred to as the "Convention". Generally speaking, Australia has protection obligations to persons who come within the definition of "refugee" in Article 1A(2) of the Convention. 3 Article 1A(2) defines a refugee to be any 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; 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." 4 Applicant Z claimed that he had a well-founded fear of being persecuted in Iraq for reasons of his religion (the Sabean, also known as the Mandean, religion). His claim was rejected by a delegate of the Minister and he applied to the Tribunal for review of that decision. 5 The Tribunal found that Applicant Z did not have a well-founded fear of persecution for reasons of his religion. That matter was ultimately not the subject of his application to the Court for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the "Act") and is not the subject of the present appeal. Applicant Z claimed, however, as one of a number of alternative claims, to fear persecution because he had left Iraq illegally, remained abroad for a significant period of time and sought asylum here. This alternative claim was likewise rejected by the Tribunal and Applicant Z then applied to this Court for judicial review of the Tribunal's decision, the application being, as already noted, limited to the decision on the alternative claim. It is necessary, therefore, to refer only to that part of the Tribunal's reasons as deals with the alternative claim and to the factual findings made by the Tribunal in respect of it. The tribunal's decision 6 There was a considerable body of country information before the Tribunal and which is discussed in its reasons for decision, relating to the fate in Iraq of persons who departed that country, remained outside for an extended period of time and subsequently returned, particularly in circumstances where their return arose by way of deportation. A deal of this material was to the effect that the Iraqi regime regarded those who had applied for refugee status in another country to be political traitors, such that they could face the death penalty or other consequences which would constitute persecution on return. One report noted that the United Nations High Commissioner for Refugees was of the opinion that Iraqi asylum seekers having applied for asylum abroad were endangered in case of their return and in particular would be interrogated and punished were the Iraqi authorities to discover they had sought such asylum. The Tribunal quoted advice to the Department from the International Organisation of Migration dated 27 May 1998 as stating: "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." 7 There was also country information which may perhaps be said to have pointed in the other direction. The overall thrust of the country information is summarised by the Tribunal in the following passage: "Some of the information points to the authorities not being concerned with returnees unless the particular applicant has a political profile. While having a dissident profile would almost certainly bring an Iraqi to adverse attention, there are circumstances where developing such a profile in Iraq is not necessary to found a conclusion that there is a real chance a particular person might be persecuted. In that regard, the available information also suggests that illegal departure and prolonged absence raises the prospect that a particular person has dissident views in the eyes of the Iraqi authorities. Other information indicates that returned, failed asylum seekers would be perceived to be opposed to the regime and therefore face problems. As John Parker (sic) has pointed out, deportation from Australia, if it occurs, would place the person directly in the hands of the authorities and the Tribunal accepts that in such circumstances there is an increased likelihood that he would be seen as someone who has impugned the Iraqi State. Mr. Packer states this at least would mean lengthy and harsh interrogation." 8 The judgment appealed from summarises the Tribunal's finding as follows: "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." 9 It was common ground that the Tribunal accepted there would be a real risk to Applicant Z of persecution were he to be deported 10 There was also country information before the Tribunal, which it noted in its reasons, that prolonged and unexplained absence led to suspicion on the part of the authorities in Iraq and frequently to interrogation. There was likewise information to the contrary. The Tribunal found that the available information suggested that illegal departure and prolonged absence raised the prospect that a particular person would be seen to have dissident views in the eyes of the Iraqi authorities. The Tribunal made no finding whether this was the case when there was prolonged absence but no illegal departure. That it would be was suggested by some of the country information. Perhaps it may be inferred that the Tribunal took a contrary view; perhaps it did not consider the question. Failure to consider the question could be a constructive failure to exercise its jurisdiction or an error of law. However, it would have been open to the Tribunal to decide that Applicant Z's absence from Iraq at the time of the hearing was not prolonged, although its reference to illegal departure and prolonged absence might suggest a decision otherwise. Elsewhere in its reasons, however, the Tribunal said: "It does not accept the claim that his absence from the country is prolonged and will lead to the Iraqi authorities imputing to him opposition political opinions." 11 It should be noted that by the time the Tribunal had delivered its reasons in June 2000, Applicant Z had been out of Iraq since August 1999, that is to say ten months. In the meantime another two years have passed. That, however, is not a matter relevant to the present appeal. The facts must be found by reference to the situation as it existed at the time the Tribunal made its decision, not at a later time when the matter is before the Court on an application for judicial review. 12 The Tribunal found that Applicant Z and his family had left Iraq on valid passports and not illegally. It found also that at the time they left Iraqi authorities were satisfied that Applicant Z did not harbour dissident opinions and he was of no adverse interest to the authorities. 13 It was common ground that on arrival in Australia Applicant Z did not have a valid passport. He claimed that it had been taken from him by the people smuggler who arranged for him to come here, although the Tribunal noted that he did have photocopies of relevant documents including the passport. Applicant Z had given evidence that the people smuggler had provided him with a photocopy. 14 The Tribunal was not satisfied with Applicant Z's claim that his passport had been taken from him by the people smuggler in circumstances that led to the result that it could not be recovered by him. The Tribunal said: "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." 15 Applicant Z in the Tribunal relied also upon his conduct in Australia as alerting the Iraqi authorities to the fact that he had applied for asylum in Australia. For example, Applicant Z had appeared on television news when Mr Ruddock, the Minister for Immigration and Multicultural Affairs, had visited Port Hedland in February or March 2000. However, the Tribunal was of the view that nothing that had happened in Australia would result in Applicant Z having a well-founded fear of persecution for reasons of imputed or actual political opinion. It pointed out that the "application for protection visa" form itself was confidential and concluded that the making of such an application was not at that stage known to the Iraqi authorities. 16 The Tribunal then said: "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 dissident for that reason. … The Tribunal is satisfied that his application for a protection visa in Australia remains confidential. It does not believe he cannot retrieve his passport. While there is information available to indicate that some returnees may be at risk of serious mistreatment, in the context of the Applicant's history as a public servant and his lack of any significant profile arising from his religion or real and imputed political opinions, the Tribunal is satisfied that there is not a real chance the Applicant might number among such people. It is satisfied that his departure was both legal and known to the authorities. It does not accept the claim that his absence from the country is prolonged and will lead to the Iraqi authorities imputing to him opposition political opinions. In summary, the Tribunal finds 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." The decision appealed from 17 There were two grounds of judicial review advanced before the learned primary Judge. The first was that the Tribunal had erred in law or had incorrectly applied the law to the facts in failing to consider that Applicant Z had a real chance of persecution if returned to Iraq, because Iraqi authorities would become aware that the applicant was likely to have applied for asylum in Australia. The second ground was that there had been a failure to observe procedures in accordance with s 476(1)(a) of the Act in that the Tribunal had failed in accordance with s 430(1)(c) of the Act to set out findings on material questions of fact. 18 Having regard to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 overruling the decision of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, the latter ground was not pressed in the appeal. 19 Applicant Z had relied before his Honour on what were said to be certain "findings" by the Tribunal as demonstrating that the authorities in Iraq were likely to learn that he had applied for asylum in Australia. This in turn would lead them to impute to him a political opinion that would result in his having a well-founded fear of persecution: "(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." (The finding (b) would seem, in fact, inconsistent with what the Tribunal found.) 20 The submission made to his Honour was that the Tribunal had, while accepting that deportation from Australia would place a person directly in the hands of authorities so that there was a real chance that he would be seen as someone who impugned the Iraqi State, failed to consider the mode and effect of return. Particularly, it was argued that the Tribunal had not considered how Applicant Z could be returned to Iraq, whether via Jordan or otherwise, and especially what would be the effect of his being removed from Australia. For the Minister, it was argued before his Honour that once the Tribunal accepted that the applicant could return to Iraq on his own passport it would not be necessary for him to be deported from Australia. Thus, the risk of lengthy and harsh interrogation and any adverse impacts of deportation could be avoided by the applicant. 21 The learned primary Judge found for Applicant Z essentially on the basis that the Tribunal had failed to address the issue of how the passport would be collected from the people smuggler who helped him come to Australia or if it became necessary to obtain a replacement passport how that could be achieved so as to ensure there was effective protection for him in Iraq. His Honour was also of the view that the Tribunal had not addressed the question whether that effective protection could only be secured were Applicant Z to be returned to Iraq via Jordan and not "deported". The learned primary Judge said: "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. 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." the decision of the high court in yusuf 22 As already noted, the High Court in Yusuf disapproved the decision of the Full Court of this Court in Singh. However, in so doing the High Court discussed, particularly, what relevant grounds were open to a person seeking judicial review in this Court where the Tribunal had failed to address an issue relevant to the application. 23 The leading judgment in Yusuf is that of McHugh, Gummow and Hayne JJ, which discusses, inter alia, the circumstances in which this Court would have jurisdiction to deal with cases in which it is alleged the Tribunal failed to make some relevant finding of fact. Their Honours suggest three grounds which could found jurisdiction in the Court to set aside a decision of the Tribunal based on such a failure. The first, discussed, inter alia, in connection with the earlier decision of the High Court in Craig v South Australia (1995) 184 CLR 163 at 179 is "jurisdictional error". As their Honours point out jurisdictional error can arise, inter alia, where the decision-maker asks the wrong question or ignores relevant material. The second, and there is some overlap, is error of law involving either an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. While it is well established that factual error itself does not found judicial review, the identification of a wrong issue, the asking of a wrong question or the ignoring of relevant material will often reveal, as their Honours point out, that the Tribunal has made an error of law upon which judicial review may be based under s 476(1)(e) of the Act. The third ground on which the Court could intervene is where the Tribunal has taken irrelevant considerations into account or failed to take into account relevant considerations. The third ground and its reconciliation with ss 476(3)(d) and (e), applicable only to s 476(1)(d), need not here be discussed. 24 Consequent upon the decision of the High Court in Yusuf, Applicant Z sought leave to amend his application and grounds for an appeal to the extent necessary to permit him to argue by way of contention that in the present circumstances there was either a failure to exercise jurisdiction or an error of law in the sense discussed in Yusuf entitling him to support the judgment appealed from albeit on different grounds. That leave was granted. Indeed, it was not opposed. There was no real prejudice to the Minister (none was suggested) and in essence the amendment involved argument on the same issues as those addressed by the learned primary Judge. The reasons of the court 25 The learned primary Judge considered, and this was not disputed in the appeal, that the Tribunal had found as a fact by accepting the evidence of Mr Packer that deportation from Australia, if it occurred, would place Applicant Z directly in the hands of the Iraqi authorities and involve, at the least, lengthy and harsh interrogation. Given the Tribunal's finding of fact as to the consequence to Applicant Z of deportation, we agree with the learned primary Judge that the Tribunal would, in the circumstances of the present application, fail to exercise its jurisdiction (and did so fail here) unless it addressed the following matters: 1. In the circumstances, was departure by Applicant Z on a voluntary basis a likely or even a possible option for him? In considering this issue, it would be relevant for the Tribunal to take into account that s 198 of the Act requires that an unlawful non-citizen whose visa application has been determined adversely to him "must" be removed. 2. Even if the Tribunal was of the view that Applicant Z might avoid removal by voluntary departure, the Tribunal would need to give consideration to the practicality and likelihood of that happening. So, for example, given that he was in detention, how could he recover the passport that, if in fact given to the people smuggler, he had given, so the Tribunal held, on the basis that it could be recovered? And, if the practical difficulty of detention could be ignored, what was the likelihood that the people smuggler would return the passport and in circumstances where it could be used by the applicant to depart voluntarily before compulsory removal took place? The possibility of voluntary departure might also involve consideration of whether the applicant had access to funds to permit him to depart voluntarily. 3. Given that Applicant Z was in detention, but was to be removed from Australia (or, for that matter, was able to effect a voluntary departure from Australia), if he was unable in time, or at all, to recover his passport how could he obtain a new passport from the Iraqi authorities? It would be necessary for the Tribunal to consider whether there was a practical difficulty in doing so given that Applicant Z was in detention and presumably could only attend personally at the Iraqi Embassy (if at all) in the presence of detention officers guarding him. The Tribunal would need to consider also what impact it would have on the question whether the Iraqi authorities would learn of his application for refugee status that an application for a new passport was forwarded by post from the detention centre and was to be returned to the centre, if postal applications for replacement of Iraqi passports were possible. The Tribunal might also need to consider such other matters as whether Applicant Z would have to swear as to the circumstances in which the previous passport became lost. No doubt the question of the procedure necessary to obtain a replacement Iraqi passport would need to be addressed. 4. If the reality was that Applicant Z would necessarily be removed from Australia and could not, or would not, leave voluntarily, would the travel to Iraq be on a ticket purchased by the Australian government? Would the ticket show the source of purchase and, if it did, whether that alone might alert the authorities in Iraq to the fact that Applicant Z had been "deported"? 5. Generally, as his Honour held, how Applicant Z could be returned to Iraq in a manner which would secure for him effective protection in Iraq. 26 It was submitted on behalf of the Minister that the failure to address the mode of obtaining a passport was neither a jurisdictional error nor an error of law, because the Tribunal had held that Applicant Z had delivered up his passport to the people smuggler on the basis that it would, when requested, be returned. Hence, it was submitted, it was unnecessary for the Tribunal to consider matters which went to obtaining a passport. Such matters were not essential to the Tribunal's decision. They constituted no more than an alternative ground for it. 27 There are two answers to this submission. The first is that some of the matters which would need to be considered in a real exercise of the Tribunal's jurisdiction go to departure on a recovered passport (see, for example, the matters raised in point 2 above). Secondly, it can be said that there is an inference available from the Tribunal finding it necessary for it to consider the alternative course of obtaining a passport, that the Tribunal was in some doubt about the ability of Applicant Z to recover the passport from a people smuggler at least in time to permit that passport to be used to return to Iraq. Presumably, since the Tribunal can be assumed to know the law, the Tribunal was exercising the caution urged upon it by the High Court by considering the question, "What if I am wrong?": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigtaion and Ethnic Affairs v Guo (1997) 191 CLR 559; and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. This gives added significance to the Tribunal's alternative suggestion, namely, that the applicant might seek to obtain a new passport from the Iraqi authorities. 28 Like the learned primary Judge, we do not find it necessary to consider the question whether the Tribunal should, as his Honour suggested, have addressed and properly considered the question whether effective protection in Iraq could only be secured if Applicant Z were returned via Jordan and the related question how Applicant Z could be returned to Iraq in a manner which would secure effective protection for him in Iraq. The appeal should be dismissed with the consequence that the application should be reconsidered in accordance with law. We would, however, vary the order made by his Honour to give the parties liberty to apply in the event that either party should wish to argue that the matter be heard by a differently constituted Tribunal. In that reconsideration, it will be desirable that the Tribunal address the matters left unconsidered by his Honour, whether or not failure to do so would involve jurisdictional error, a matter we find it unnecessary to consider. 29 The appeal is accordingly dismissed and the Minister is ordered to pay the costs of it. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, O'Loughlin and Carr A/g Associate: Dated: 16 October 2001 Counsel for the Applicant: P R MacLiver Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: R E Lindsay Solicitor for the Respondent: Legal Aid Commission Date of Hearing: 23 August 2001 Date of Judgment: 16 October 2001