Al Khafaf v Minister for Immigration and Multicultural Affairs

[2000] FCA 1432

FEDERAL COURT OF AUSTRALIA

Al Khafaf v Minister for Immigration & Multicultural Affairs [2000] FCA 1432

Migration Act 1958 (Cth), s 476

Minister for Immigration & Ethnic Affairs v Eshetu [1999] 197 CLR 611, followed
Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845, followed
Minister for Immigration & Multicultural Affairs v Thiyagarajah [1998] 80 FCR 543, followed

TAHSEEN ABDUL AMIR AL KHAFAF v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 92 of 2000

R D NICHOLSON J
20 SEPTEMBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 92 of 2000

BETWEEN:	TAHSEEN ABDUL AMIR AL KHAFAF APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	20 SEPTEMBER 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application for an order of review dated 6 June 2000 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 92 of 2000

BETWEEN:	TAHSEEN ABDUL AMIR AL KHAFAF APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	R D NICHOLSON J
DATE:	20 SEPTEMBER 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application for an order for review under the Migration Act 1958 (Cth) ("The Act"). The application seeks review of a decision of the Refugee Review Tribunal ("The Tribunal") given on 17 May 2000.

2. The decision of the Tribunal was to affirm a decision of the delegate of the respondent not to grant to the applicant a protection visa.  The applicant is a citizen of Iraq, who arrived in Australia on 12 October 1999.

3. The delegate's decision was made on 18 January 2000.  The applicant appears unrepresented.  He has the assistance of an interpreter.  His application appears in a form common to those in immigration detention and prepared without any evident legal advice.  Although the applicant has had legal advice, that was not in respect of the formulation of the application.

4. There are three grounds of review in the application. The first ground is: "the procedures that were required by the Act to be observed in connection with the making of the decision were not observed in that the Tribunal failed to act according to substantial justice and the merits of the case". That ground is said to be based on s 476(1)(a) and s 420(2)(b) of the Act. However, s 420 is not a section providing for a procedure of the kind contemplated by s 476(1)(a). The authority for this is found in Minister for Immigration & Ethnic Affairs v Eshetu [1999] 197 CLR 611. The first ground therefore cannot assist the applicant. I will return to the other two grounds later.

5. At this point I will insert reference to the relevant provisions of the Act and of the Convention. 

   Tribunal's findings of fact

6. The Tribunal's finding may be summarised as follows:

   1.As to his claim of being of perceived Iranian descent:

   (a)       the applicant is not of Iranian descent;

   (b)the authorities of Iraq do not consider that he or his family is of Iranian descent.

   2.As to his claim of not having completed military service:

   (a)what the applicant has said about this aspect of his history is not true, contradictory and nonsensical.  His claim was not to have completed Iraqi military service; 

   (b)the applicant fabricated this claim to substantiate a reason for his claim that his passport was illegal and the basis of an adverse interest in him by authorities;

   (c)the applicant has completed military service.

   3.As to the claim of having falsified documents:

   (a)the applicant's claim that his passport was false was untrue and contradictory to his claim to have expedited his passport application by bribe.  His passport was issued to him by the Iraqi authorities. 

   4.As to the history of his family in Jordan:

   (a)       the applicant's family of two brothers and a sister have legal status in Jordan. 

   5.As to his claim of illegal departure from Iraq:

   (a)this was not accepted as true and it was found the applicant had departed legally together with his family. 

   6.As to the applicant's claims relating to being of the Shi’ah religion:

   (a)       the applicant is Shi’ah;

   (b)       his claims of having difficulty due to this were not accepted;

   (c)he had fabricated an incident involving the Ba’ath party and the practice of his religion;

   (d)the applicant is not of interest to the Iraqi authorities because of his Shi’ah religion;

   (e)such limitations as there were on the practice of his religion in Iraq were not of sufficient seriousness as to constitute persecution within the meaning of the Convention.

   7.        As to the status of the applicant and his family in Jordan:

   (a)he and his family moved to Jordan for economic or business reasons;

   (b)he and his brothers operated a carpet sales business;

   (c)the authorities in Jordan have no interest in him;

   (d)the applicant has effective protection in Jordan in that he is able to enter, re‑enter and reside there;

   (e)he will not be sent back to Iraq from that country.

   8.As to the applicant's position in Iraq:

   (a)he was of no interest to the Iraqi authorities at the time he departed that country;

   (b)he has not done anything which would cause the Iraqi authorities to be interested in him other than possible questioning of him in relation to a lost passport.  Such questioning was found not to amount to persecution within the meaning of the Convention;

   (c)in relation to whether the Iraqi authorities may find out about his refugee application, he is not of any interest to the authorities for any reason, nor does he have a history which would cause the authorities any concern, so that he would not face harm because of his activities outside of Iraq.

7. As to the applicant's credibility, he had fabricated and exaggerated his claims and was not regarded by the Tribunal as a credible witness.

8. The Tribunal was therefore not satisfied the applicant was a person to whom Australia has protection obligations, so that he did not satisfy the criterion for a protection visa.  Accordingly, the Tribunal affirmed the decision of the delegate.

   Applicant's submissions

9. As the applicant is not legally trained, his submissions were not able to address legal issues raised by the remaining two grounds of review.  He made a number of submissions which may be summarised as follows.  Firstly, he said that he left Iraq to find a better life for himself and his family.  Secondly, he said that telling the truth was extremely important to him as a Shi’ah from Najaf, where a lie was equivalent to a capital sin.  He felt the Tribunal had focused only on points which were against him.  Thirdly, he submitted in relation to Iraq that his position would now be affected by fresh evidence arising since the Tribunal hearing.  This evidence, as he expressed it, was that film of scenes at his place of detention in Australia had been shown on Iraqi TV and the comment made that the conduct of Iraqis shown in those scenes was defaming Iraq.

10. He claims the events took place on 16 June 2000 and appeared three or four days later on Iraqi television.  While the applicant claims to have played no part in the conduct filmed he considers there is a real chance that he would be thought to have been a party to that conduct.  Fourthly, he said he did not accept that he could go back to Jordan where he claimed to have only had three weeks residence.  Fifthly, in relation to the findings of the Tribunal concerning his return to Iraq he disagreed with the findings based on the information by a Mr John Packer on the situation in Iraq referred to by the Tribunal in its reasons. 

11. In relation to the findings of the Tribunal that the applicant lacked credibility it has been explained to the applicant during the hearing that this is not a matter open to review in this Court except in the case where there is no evidence for any such finding.  The applicant accepts that it was because he told the truth that points which might have been against him and which he had not withheld were utilised by the Tribunal to make its findings in relation to credibility.

12. I will return to the matter relating to fresh evidence and the country information relating to the return to Iraq subsequently in these reasons. 

13. It is apparent from the way in which the applicant presents his case that his primary and overriding concern is not to be returned to Iraq.  I will return also to that matter.

    Failure to observe procedures

14. The second ground in the application states that the procedures required by the Act to be observed were not observed in that the Tribunal failed to set out findings on a material question of fact - see s 476(1)(a) and s 430 of the Act. Not surprisingly the applicant has not provided any particulars of this ground. It is s 430(1)(c) which is the relevant aspect of s 430 and requires the Tribunal to prepare a written statement setting out the findings on any material questions of fact.

15. As has recently been explained in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 the material facts take their colour and content from the nature of the case. The material issues here related to the applicant's religion, his ethnicity, whether he could find effective protection in Jordan and whether he could without a well‑founded fear of persecution be returned to Iraq. As appears from the findings previously set out the Tribunal has addressed each of these material questions of fact.

16. Additionally, it made findings on non‑convention issues.  These related to the alleged failure of the applicant to complete military duties and the economic position in Iraq.  The latter issue was addressed briefly, and partly by implication, but it was not, in my view, a method of address which gave rise to any failure to comply with s 430(1)(c).

17. In my view, the second ground cannot be made out.

    Error of law involving incorrect interpretation of the applicable law

18. Again, not surprisingly, the applicant is unable to articulate or particularise where any incorrect interpretation has occurred. There is nothing in the Tribunal's statement of reasons, where it describes the relevant legal principles, which shows that it did not correctly interpret the applicable law, nor is there anything in its subsequent application of the law to suggest it incorrectly interpreted the applicable law. This aspect of the third ground, which is based on the first limb of s 476(1)(e) of the Act cannot therefore be made out.

    Error of law involving incorrect application of the law

19. This second aspect of the third ground is also based on s 476(1)(e) of the Act. The findings of the Tribunal have previously been set out. Given those findings, the conclusions which it reached were reasonably open to it, and opposite conclusions would not have been open to it.

20. There is one aspect of the reasons which attracts further comment in this respect:  the Tribunal, having found that the applicant has effective protection in Jordan was not required to proceed to consider whether the applicant would not face harm if he returned to Iraq.  Having considered the reasoning of the Full Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah [1998] 80 FCR 543, I am of the view that the Tribunal was not precluded from proceeding to consider the position in relation to Iraq, although it was unnecessary for it to do so.

21. There is a further feature of the Tribunal's reasons which attracts particular comment: it was the reliance on the evidence of Mr John Packer for the conclusion that the applicant would not be of any interest to authorities in Iraq were he to be returned there. I have considered whether there was no evidence or other material to justify the making of that aspect of the decision, having in mind the provisions of ss 476(1)(g) and 476(4)(b). However, I have been taken to other evidence before the Tribunal which supports that conclusion, although the precise conclusion in the context of the information from Mr Packer is not apparent on the papers before me. It follows that this second aspect of the third ground also cannot be made out for the applicant.

    Additional matters

22. There remains the issue of the effect of the fresh evidence arising after the hearing of the Tribunal relating to television publicity in Iraq of events at the applicant's place of detention.  I note that pursuant to s 48 of the Act the Minister may, if it is in the public interest to do so, determine that s 48A does not apply to prevent a further application for a protection visa.  There is also power in the Minister pursuant to s 417 to substitute a more favourable decision within the terms of that section.  While the Court does not have definitive evidence before it relating to the alleged TV publicity, I recommend that, should it be necessary to do so, consideration be given to the effect of the alleged fresh evidence. 

23. I say "should it be necessary to do so" because I have been told from the bar table on behalf of the respondent that if the applicant would prefer to be returned to Jordan there would be no anticipated difficulty in bringing that about.  I mention that because it was not necessary for the Tribunal to proceed beyond its finding that the applicant has effective protection in Jordan.  It would appear therefore that this would be an appropriate case for the applicant to be given the opportunity to express his preference, whether to return to Jordan or to Iraq. 

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson J.

Associate:

Dated:             20 September 2000

Mr Al Khafaf appearing in person via video
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 September 2000
Date of Judgment:	20 September 2000