FEDERAL COURT OF AUSTRALIA Hussein v Minister for Immigration & Multicultural Affairs [2001] FCA 1532 MIGRATION – application for a protection visa – claims of imputed political opinion due to suspicion of being an Israeli spy – claims of well-founded fear of persecution based on unfairness of any trial and torture – whether tribunal failed to comply with procedures by not giving applicant particulars of information forming part of reason for affirming decision of refusal – whether no evidence or other material to support tribunal decision – whether applicant's case failed in any event to identify convention reason for accusations Migration Act 1958 (Cth) ss 424A, 476, 476(1)(a), 476(1)(b), 476(1)(e) Schwallie v Minister for Immigration & Multicultural Affairs [2001] FCA 417 distinguished Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 378 cited Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 cited MAMDOOH IBRAHIM IBRAHIM HUSSEIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W156 of 2001 RD NICHOLSON J 6 NOVEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 156 of 2001 BETWEEN: MAMDOOH IBRAHIM IBRAHIM HUSSEIN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 6 NOVEMBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent'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 156 of 2001 BETWEEN: MAMDOOH IBRAHIM IBRAHIM HUSSEIN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 6 NOVEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application for an order for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 23 April 2001. The Tribunal affirmed a decision of a delegate of the respondent to refuse the grant of a protection visa to the applicant. The applicant, who is a citizen of Egypt, arrived in Australia on 4 September 2000. On 24 September 2000 he lodged an application for a protection visa (class XA) with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). 2 The application for review is brought to this Court in reliance upon the provisions, in particular, s 476 of the Act. Although the Act has recently been extensively amended, it is not disputed here that the Act requires consideration in respect of the applicant as it stood prior to those recent amendments. Relevant provisions 3 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. 4 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". The applicant's claim 5 The applicant's claim was that he "fears that he will be imprisoned and tortured if returned to Egypt". This was understood at the hearing as a claim that he had a well-founded fear of being persecuted for reasons of political opinion imputed to him by the government of Israel as a consequence of his being sought in relation to espionage charges, such persecution arising from the real chance that if returned to Egypt he would suffer an unfair trial and also imprisonment and torture. 6 The circumstances in which this claim was made by the applicant were outlined in the Tribunal's reasons, although not made the subject of findings of fact. The essential elements relied on by him to support his claim were as follows. He is a 24-year-old single man from Fakous, in Al Sharqia Province in Egypt. He completed his schooling in 1995 and began working at a butcher's shop owned by a man called Mohamad Farhan in July 1997. There were two other employees at the shop. 7 In May 2000 the applicant, his employer and fellow workers were interrogated by police. He and the other workers speculated on why the police had come to the shop. Subsequently, either by them going to the police station or being picked up at the butcher's shop and taken to the police station for interrogation, the employer, the applicant and his fellow workers were again interrogated. He was asked about a Jewish man called David who was said to be a friend of Mr Farhan who had worked at his shop. The applicant remained in detention for 15 days and claimed to have been beaten and interrogated. The employer, the applicant and the fellow workers were released after that period. He returned to his work with Mr Farhan who told him there was nothing to worry about. 8 However, about a month after their release from detention the employer and the other workers were detained for a second time. At this time the applicant had been on leave and so was not detained. When he returned home his father told him the police were looking for him and he should not stay at the family home. His father consulted a lawyer who advised that Mr Farhan had been accused of treason and the applicant and the other employees were suspected of involvement. He advised the applicant to leave the country. The applicant's ultimate evidence was that within 5 days he left Egypt and went to Jordan and subsequently came to Australia. 9 In his evidence before the Tribunal, the applicant also said that while he had not spoken to his family since leaving Egypt, he had received a telephone call from a friend in Egypt who told him that Mr Farhan had confessed under torture to knowing David, an Israeli spy, and had implicated the applicant claiming that he had given David information about the capacity of military camps in Ismaelia and the kinds of weapons the soldiers used. Tribunal's reasoning 10 The Tribunal found the applicant not to be a credible witness. It did so on two principal bases. 11 The first was that there were a number of discrepancies in his evidence as to how he had gone to the police station in the first instance. He was said also to have given differing accounts of where he was when he learned that police were looking for him a month after he was released from detention. Further, the Tribunal said he gave conflicting evidence on the amount of time he remained in Egypt after learning that the police were looking for him on his return from leave. 12 Secondly, the Tribunal based its credibility finding on the fact that it found his evidence regarding his problems in Egypt as "unconvincing and implausible". In that category it was said that it would be unlikely that someone who worked in a butcher's shop and who had no involvement in politics or other activities might be expected to obtain information of an espionage character. It was also thought to be unlikely that he would have been released after 15 days if suspected of involvement in espionage. It was further said that it was unlikely his case would have received no publicity. Most importantly (in the view of the Tribunal) the Tribunal found it was implausible that the applicant would have been able to leave Egypt on his own passport if he was wanted for espionage. 13 The Tribunal therefore did not accept that the applicant was falsely accused of being a spy or that he fled Egypt because he feared he would be detained for that reason. The Tribunal did not accept that police had visited his family home and that his father had faced problems due to the allegations made against the applicant. 14 Finally, it was said that the applicant did not claim that the accusations of espionage against him were made for any Convention reason. 15 The Tribunal was therefore not satisfied the applicant had a well-founded fear of persecution for such reason and consequently not satisfied Australia owed him protection obligations under the Refugees Convention. Grounds of review 16 In the substituted application four grounds of review are identified. It is accepted for the applicant that the third ground of review cannot alone carry the application but, if upheld, should weigh with the Court in supporting a decision by it to remit the application for a re-hearing. The fourth ground of review is in essence a variant of the third ground or to be resolved by reference to the same considerations. The particulars of the grounds appear below. Ground (a): Failure by Tribunal to observe procedures under s 424A of the Act 17 This ground is brought in reliance on the jurisdiction of the Court to review an application on the ground provided for in s 476(1)(a) of the Act, namely that procedures that were required by the Act or the Regulations to be observed in connection with the making of the decision were not observed. It is common ground that the provisions of s 424A are such procedures. 18 Section 424A reads: "(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) … (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information. 19 The ground is particularised by saying that the Tribunal obtained information from its own research concerning human rights activist, Ibrahim, and an unnamed Egyptian civil engineer, who had both been accused of spying by the Egyptian authorities and the Tribunal relied on such information in part to affirm the decision under review without complying with the provisions of s 424A(1). In particular, it is said the Tribunal relied on such information to conclude that the Egyptian authorities would have publicised any prosecution of the applicant's employer and fellow employees. The claim made under the ground is that the information was specifically about "another person" whose circumstances were considered by the Tribunal to be relevant to the claims made by the applicant so that the exception in s 424A(3)(a) was not applicable to it. 20 There are two primary relevant passages to this ground of review in the reasons of the Tribunal. The first appears when the Tribunal was discussing what it called "Background on Egypt". The passage read as follows: "Two recent newspaper articles provide some background on the reasons for and handling of espionage cases in Egypt. They report on trials of two people accused of spying. The first case involves sociologist and human rights activist Saadeddin Ibrahim, a US citizen who was indicted in September on various charges related to an electoral monitoring project that he had intended to run, which included taking money from the European Union without permission and spreading rumours to undermine the state's integrity. When his trial began in November 2000 it was announced that the charge of spying for a foreign country would be added. According to the Middle East International the case has much more to do with the regime's campaign against non-government organisations than anything going on abroad. The second case involves an Egyptian civil engineer whom the Egyptian authorities believed was involved with a former KGB agent employed by Mossad. It appears that engineer confessed to Egyptian authorities that he had entered into an illegal scheme to launder money and only later learned that his Russian associate was working for Mossad. In relation to his case and the conviction of two other alleged spies in 1997, Middle East International expresses some doubt about the validity of the charges and observes that such cases tend to occur when Egypt feels it needs to respond to objectionable Israeli or American policies and would gain some benefit from news reports the capture of an Israeli spy. ("Family of accused say his is no spy" Middle East Times 8 December 2000 CX47454 and "The season for spies" Middle East International 8 December 2000 CX49446)." 21 Later in the Tribunal's reasons under the heading "Claims and evidence" there appeared the following passage: "I also noted that there did not appear to have been publicity about the case and observed that it seemed strange that the Egyptian authorities had not made any announcement about it. Mr Hussein said that there had been no publicity about the case because the authorities were still conducting their investigations and wanted to capture David. He said there was another case involving someone from Jordan where the case was kept secret for 3 months until the people involved were caught in the act." Later still, under the heading "Findings and reasons for decision" the Tribunal said: "Furthermore, as discussed above, the Egyptian authorities have an interest in publicising cases in which someone is charged with spying for Israel and it seems most unlikely that the case in which Mr Hussein claims to have been involved would have received no publicity even after those involved were arrested and charged." 22 The obligation on a tribunal to give particulars of information pursuant to s 424A(1) is subject to the provisions of subs (3). The applicant contends that the information in the two reports referred to in the reasons of the Tribunal is information about "another person" and so not excluded by s 424A(3)(a) from the obligation arising under s 424A(1). It is common ground that the information was not available to the Tribunal at the date of the hearing and came to its attention subsequently. Nothing is made of this in the case for the respondent. However, for the respondent it is contended that the information in question, to the extent it was not put to the applicant at the hearing, was not information that was part of the reason for the Tribunal affirming the decision under review. It is submitted for the respondent that the information on which the Tribunal partly relied to reach its decision was this, namely: the question that there did not appear to have been any publicity in Egypt concerning espionage cases in the circumstances raised in the applicant's claim and this would be unusual where Egyptian authorities have an interest in publicising such cases concerning spying for Israel. I accept that the Tribunal's reasons make apparent that at the hearing the issue of such publicity had been put to the applicant who responded to it, as the reasons of the Tribunal record. It was that aspect alone which formed part of the reasoning of the Tribunal for affirming the decision. 23 In the passage where the Tribunal referred to the two newspaper articles it did so to "provide some background on the reasons for and handling of espionage cases in Egypt". At the conclusion of the cited articles the general observation is extracted as to how such cases tend to occur in Egypt in response to developments in relation to Israel. In my opinion in any event the information was therefore not "specifically" about "another person" but rather was illustrative of the way in which persons charged with espionage generally in Egypt are dealt with and addressed the class of which the applicant is said to be a member. In the event that is not correct, the information would nevertheless not qualify for notification under s 424A(1) because, for reasons given above, to the extent it was not put to the applicant at the hearing, it was not information which was part of the reason for the Tribunal's decision. That is made apparent by the last two quotations from the Tribunal's reasons on this issue set out above. The information which did not form part of the Tribunal's reasoning was limited to the issue of the absence of publicity of the case and that issue had been put to the applicant at the hearing. 24 Even if the s 424A point could be made out, provision of relief under s 481(1) is discretionary. In circumstances where the issue of publicity was put to the applicant at the hearing it does not seem presently apparent that the applicant could establish that the breach denied him a successful outcome. This issue, however, was not argued and I do not reach a concluded view on it. 25 In the course of argument attention was directed to the decision in Schwallie v Minister for Immigration & Multicultural Affairs [2001] FCA 417. There O'Loughlin J allowed an application for review on the ground that the reference to another person in the reasons of the tribunal there under review "loomed large" in the tribunal's reasons. In my opinion that is distinguishable from the present case where attention was directed to the two newspaper articles and the point drawn from them concerning publicity and no further reference was made to any other person the subject of those articles. 26 Accordingly, I agree with the respondent that the information relied upon to support this ground of review is neither information which falls within s 424A(1)(a) nor within s 424A(3)(a). 27 Accordingly this ground of review cannot succeed. Ground (b): No evidence 28 The Court has jurisdiction pursuant to s 476(1)(g) to review a tribunal decision on the ground that there was no evidence or other material to justify the making of the decision. That jurisdiction must be read in the context of s 476(4) which relevantly provides that the ground is not made out unless the person who made the decision based it on the existence of a particular fact, and that fact did not exist. Furthermore, in any event even if the applicant could establish the requirements of s 476(4) he would still have to establish that there was no evidence or other material to justify the making of the Tribunal's decision. 29 The particular way in which it is sought to support this ground is in respect of a statement by the Tribunal that the applicant said he had left Egypt 15 days (rather than 5 days) after discovering that he was wanted by the police. The passage in which that appears reads relevantly as follows: "Mr Hussein claims that he left Egypt and went to Jordan after learning that he was wanted by the authorities.…In his written statement provided on 24 September 2000 he said that he had left Egypt a month after learning that Mr Farhan and his fellow workers had been detained for a second time. During his Department interview,…Mr Hussein said that he had left Egypt immediately after learning that the police were looking for him.…In a submission provided to the Tribunal on 8 December, Mr Hussein again said the authorities had not had time to stop him leaving because he had left soon after learning that they were looking for him.…He repeated this explanation at the hearing, adding that he had left Egypt about 5 days after learning that police were looking for him. In my letter of 11 January 2001 I pointed out this apparent discrepancy to Mr Hussein and asked for his comments. He responded that he had left Egypt 15 days after discovering that he was wanted by the police." 30 It is submitted that the fact that the applicant had stated that he had left Egypt 15 days after he discovered he was wanted by the police, was a fact which did not exist. 31 On 11 January 2001 the Tribunal wrote to the applicant in the following terms: "The presiding Member has also asked me to point out that you appear to have given differing accounts of the length of time you spent in Egypt after you learned that the police were looking for you again. In your written statement to the Department you indicated that you remained in Egypt for about a month after your father had consulted a lawyer regarding your situation. You told the delegate that you had driven to the border immediately after learning that the police were looking for you. At the hearing, you told me that you had left the country about 5 days after learning that the police were looking for you. These discrepancies suggest that you have not been entirely honest in the evidence you have provided regarding the problems which you faced in Egypt. You are invited to comment on this information." 32 In a written response dated 22 January 2001 the applicant advised the Tribunal that when he had said that he had left "directly" he meant quickly and that he didn't wait for a long time and that that was what he meant when he emphasised the period of 5 days. 33 The ground is properly to be understood in the context of further content in the reasons of the Tribunal appearing under the heading "Findings and reasons for decision". The first such passage reads as follows: "And he gave conflicting evidence on the amount of time he remained in Egypt after learning that the police were looking for him. In his written submission dated 24 September 2000, he said that he had remained in Egypt for a month. He told the delegate that he had left immediately after learning the police were looking for him and at the hearing he told me he had left 5 days after learning the police were looking for him." The second passage appears near that and reads: "However, according to his own evidence he did not leave Egypt until at least 5 days after his employer and the others were detained and the police began looking for him." 34 I am left in no doubt by reference to these latter two passages that the basis on which the Tribunal made its findings and entered into its reasoning was that the applicant had left Egypt 5 days after learning the police were looking for him. It is clear that the Tribunal did not proceed on the basis that the applicant had left 15 days after learning the police were looking for him and did not take the 15 day period into account as a further inconsistency. That being the case and there being evidence and material to support the Tribunal finding of 5 days, this ground cannot be made out. Ground (c): Error of law in interpretation of "refugee" 35 This ground relies upon what is said to be an incorrect application of the law to the facts, being within the jurisdiction of the Tribunal pursuant to the second limb of s 476(1)(e) of the Act. 36 The ground maintains that the Tribunal erred in law in its interpretation of the applicable law relating to the definition of a "refugee" under the Refugees Convention when it determined that if the applicant was wanted in Egypt for alleged involvement in espionage, he is not someone to whom Australia owes protection obligations under the Convention. The precise terms of the passage from which that ground is said to arise reads as follows: "Furthermore, even if I accept that Mr Hussein is wanted in Egypt for alleged involvement in espionage (which I do not), I do not believe this means he is someone to whom Australia owes protection obligations under the Refugees Convention. As discussed above, in order to have be (sic) entitled to a protection visa an applicant must have a well-founded fear of persecution for a Convention reason, that is for reasons of race, religion, nationality, membership of a particular social group or political opinion. Mr Hussein claims he had been falsely accused of espionage. However, he does not claim that these accusations were made for any of the reasons contained in the Convention. He claims that the authorities believe he is a spy because of his association with his former employer who has confessed to being a spy and has accused him of also being a spy. If this were true and the Egyptian authorities genuinely suspected him of being a spy for a foreign government, then there would be nothing surprising or persecutory in their desire to arrest him. Arrest in these circumstances would be part of the normal operation of the law in any country, not persecution for a Convention reason." 37 The nub of the submission here as pressed in oral argument is that any charge of espionage must necessarily carry with it an imputation of political opinion of wishing to do harm to the state. In the written particularisation of the ground it is said that "the crime of espionage is a political crime that involves or potentially involves the holding of political opinion against the Egyptian State or Egyptian authorities". In my opinion the written formulation is preferable. A charge of espionage (if in fact there be such) may carry with it that imputation. However, I accept the submission for the respondent that there are many reasons why people may engage in espionage which do not involve a necessary imputation of a political opinion. For example, circumstances of high monetary gain may not justify such an inference. The Tribunal was not therefore in error to refer to the absence of a Convention reason in the formulation of the applicant's claim. 38 If remittal were justified it would also be necessary for the applicant's case to show something more than indiscriminate persecution being the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards him: see Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 378 at 388 per Mason J cited in Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 at 56 per Merkel J. He would have to show fear of persecution for reasons over and above "the ordinary risks" incurred by other citizens in the country whether ravaged by civil war, terrorism or otherwise: see Paramananthan at 566 and authorities there cited. The Tribunal was not therefore in error in referring to that aspect. 39 Importantly, the opinion expressed by the Tribunal on this point is hinged on the claims by the applicant that he had been falsely accused of espionage. However, the Tribunal's principal finding was that it did not accept the applicant had been so falsely accused or that he had fled Egypt because he feared he would be detained for that reason. That finding of credibility is not in my view open to challenge under any of the other grounds of review and stands on its own independently of this conclusion of the Tribunal. 40 Therefore I do not consider this ground can assist this applicant. Ground (d): Absence of jurisdiction 41 This ground seeks to rely on s 476(1)(b) of the Act. It is particularised in the same way as the previous ground. It is said that the Tribunal should have asked itself whether there was a real chance that the actions of the Egyptian authorities in the course of any arrest, detention or prosecution of the applicant would amount to persecution whether by way of the use of torture or other serious mistreatment, rigged charges, an unfair trial or otherwise and whether such persecution would arise by reason of an imputed political opinion. In circumstances where the Tribunal disbelieved the applicant's claim fundamentally, there was no purpose to be served by the Tribunal asking these questions. Only if it is possible to go behind the finding of lack of credibility would these issues become relevant in the way indicated in relation to the previous ground. This further aspect of the previous ground cannot assist this applicant. Conclusion 42 As unsatisfying as it may be to constantly find mountains of disbelief residing in the Tribunal in relation to most applicants, this Court can only go behind such findings in the event that errors of law within the jurisdiction of the Court are found to be made out. In my view this is not such a case. Accordingly, the application for review must be dismissed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 6 November 2001 Pro Bono Counsel for the Applicant: Mr H Christie Solicitor for the Applicant: Christie & Strbac Counsel for the Respondent: Mr AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 October 2001 Date of Judgment: 6 November 2001