A v Minister for Immigration and Multicultural Affairs

[1997] FCA 1550

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG994 of 1997

BETWEEN:	“A” Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	17 DECEMBER 1997
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:  This is an application for review of a decision of the Refugee Review Tribunal refusing an application for refugee status by an applicant whom I will identify merely as "A".  Mr A is an Iraqi national and a member of the Kurdish ethnic group.  He lived in Baghdad for many years and apparently adopted a lifestyle and a name that tended to disguise his Kurdish origin.  He graduated in medicine from a university in Baghdad and was awarded a scholarship entitling him to undertake post-graduate study at a university in Indonesia.  He left Iraq, to take up the scholarship, with the approval of the Iraqi government.  At the end of his period of study in Indonesia, he came to Australia and sought recognition as a refugee.  This was refused and Mr A sought review of the refusal by the Refugee Review Tribunal.

The member  of the Tribunal who conducted the review referred to some statements made by Mr A at various times, some of which were later corrected or abandoned.   As far as the Court is concerned, nothing turns on these statements.  The Tribunal member summarised the case eventually put to him in this passage of his decision:

“In a written submission to the Tribunal the applicant's legal advisers said the whole basis of the applicant's case rested on the fact that the applicant had applied for refugee status in Australia and that this had come to the attention of the Iraqi authorities.”

Dr Stephen Churches, counsel for the applicant, agrees this was the whole of the case eventually put by his client to the Tribunal, but he says the statement must be understood in the context that Mr A had come to Australia at a time when he would reasonably have been expected to return to Iraq.  Also, the statement must be understood in the context that Mr A was a member of a privileged group in Iraq.  Resources had been expended for his education and he had been given the opportunity of acquiring further knowledge and skills in order better to serve the Iraqi population.  No doubt it is possible to reason from this that Iraqi people, including perhaps government officers, would be disappointed to learn that Mr A had come to Australia and sought refugee status. 

It is not clear whether the Iraqi government is aware Mr A has applied for refugee status in Australia.  The Tribunal member said he could not accept that the “Iraqi authorities are necessarily aware of the applicant's bid for refugee status in Australia.”  However, on a fair reading of the member’s decision, it seems he was prepared to make an assumption to that effect, for the purpose of weighing the case put before him.  This was a proper course to take; there is at least a chance the Iraqi authorities are aware of the situation.

The Tribunal member dealt with Mr A's history in some detail, both his upbringing and life in Iraq and his subsequent movements.  There is no need for me to traverse these findings.  Under the heading "Findings and Reasons", the Tribunal member referred to the key argument made to him by Mr A and his legal adviser, namely:

“Because the applicant was a member of Iraq's elite and had sought political asylum in Australia he would be perceived to have taken an anti government stance.  In consequence the applicant risked interrogation or worse if he returned to Iraq.”

The applicant did not claim any history as a dissentient while in Iraq.  He offered no evidence of having engaged in any political activity or having been persecuted for his political opinion.  The only evidence of persecution was an isolated incident that occurred when he was eight years old and which seems to have reflected racial intolerance, rather than anything else.  That was in 1974 and can fairly be regarded as ancient history.

The applicant's case, simply, was that, having regard to his background, it would be thought, if he came to Australia and sought refugee status, he must be anti-government and, if returned, he would therefore be persecuted on account of his perceived political opinion.  I understand that case and I think the Tribunal member understood it.  However, he did not accept this was likely to be the situation or, indeed, even that there was a real chance of persecution.

The Tribunal member took that position because he had material concerning the treatment of Iraqis who stayed abroad for an extended period of time and even of some people who had unsuccessfully sought refugee status whilst abroad.  This material consisted of two cables from the Department of Foreign Affairs and Trade, one dated 25 July 1994 and the other 24 December 1996.  The latter cable is particularly significant; it deals with the situation of an Iraqi who had applied for refugee status in Australia and is, of course, quite recent.  In that cable the statement was made:

“If it became known that an Iraqi had applied for refugee status in Australia the reaction of the government of Iraq (‘GOI’) would depend on what claims the applicant had made, how publicly, and whether they reflected badly on the GOI.”

The Tribunal member also had a copy of a report prepared by the Australian Security Intelligence Organisation (“ASIO”) dated 17 December 1996 concerning people who made applications for refugee status whilst overseas.  ASIO reported that, in general, refugee status applicants who were not involved in genuine dissentient activity in Iraq, or with a major opposition group outside Iraq, should be able to return to Iraq without fear of death or harsh retaliation.  ASIO commented that people with valuable skills (I interpolate, such as Mr A) could even expect to be re-employed without significant problems. 

The Tribunal member also had regard to a report prepared by a group called Committee Against Repression and for Democratic Rights in Iraq, (“CARDRI”), dated 6 June 1995.  This report included a statement that Iraqis who return to the country, other than those who have recently left on officially sanctioned trips, will be interrogated; a person absent from the country without explanation would be suspected of sympathy with, if not activity within, the opposition. 

The Tribunal member commented that Mr A "does not come anywhere near to matching the DFAT, ASIO or CARDRI profile of an Iraqi who might be in trouble with the authorities if he returns.”  He went on to explain the position he thought Mr A was in. 

It seems to me the Tribunal member addressed the correct question.   He made findings of fact which were supported by information from credible sources.  It is not for this Court to take over the function of fact finding.  The Tribunal’s findings of fact must be respected, unless it can be said they are infected by error of law, a denial of substantial fairness or some lack of rationality.  I do not think any of those criticisms can fairly be made in this case.

The other matter mentioned by Dr Churches is that, towards the end of his decision, the Tribunal member referred to the decision in Somagi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 102 ALR 339, and particularly a statement made by Gummow J at 358 concerning actions taken outside the country of nationality undertaken: “for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution.” His Honour said such actions should not be considered as supporting an application for refugee status.

I am puzzled as to the Tribunal  member’s reason for referring to this passage.  It has little to do with the material set out immediately before and after the reference.  If I were able to interpret the reference as an indication that the Tribunal was assuming Mr A's application for refugee status was something done under the pretext of invoking a claim to well-founded fear of persecution, there being no evidence to support such a view, I would have been inclined to the conclusion that this was an error of law.  However, I do not think the reference can bear such an attribution.  There is no context to suggest the Tribunal member proceeded on that basis.  His whole approach to the case points in the contrary direction.

I think this is a case where the Tribunal made a finding of fact that was open to it.  I do not find any reviewable error entitling the Court to interfere.  As I understand the position, Mr A wishes to remain in Australia; no doubt, if he were allowed to do so, he would make a welcome addition to the Australian population.  But that is not a matter for the Court to consider.  The only question I have to determine is whether there is a proper basis, under the legislation, for interfering with the Tribunal's decision.  The answer to that question is in the negative.  Accordingly the application must be dismissed.

[There was discussion about costs.]

The orders of the Court will be that the application be dismissed and the applicant pay the respondent's costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:            17 December 1997

Counsel for the Applicant:	Dr S C Churches
Solicitor for the Applicant:	Houston Dearn O’Connor
Counsel for the Respondent:	D Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 December 1997