Al-Zafiry v Minister for Immigration and Multicultural

[1999] FCA 442

FEDERAL COURT OF AUSTRALIA

Al-Zafiry v Minister for Immigration & Multicultural
Affairs [1999] FCA 442

SALEH SAFAQ SAYAH AL-ZAFIRY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1330 OF 1998

EMMETT J
24 MARCH 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1330 OF 1998

BETWEEN:	SALEH SAFAQ SAYAH AL-ZAFIRY Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	24 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant has sought to read an affidavit of Bryce Wilson sworn 23 March 1999.  The purpose for reading the affidavit is to have admitted into evidence a facsimile transmission from the United Nations High Commissioner for Refugees (“the High Commissioner”) of 19 January 1999 (“the facsimile in question”).  In order to comprehend the basis upon which the document is tendered, it is necessary to consider part of the reasons for the decision of the Tribunal. 

2. In its reasons, the Tribunal referred to a facsimile transmission of 23 October 1998 addressed to the applicant's solicitors by Mr Steven Wolfson, a legal officer of the High Commissioner.  That facsimile referred to the solicitors’ facsimile of 6 October 1998, although that does not appear to have been before the Tribunal.  The facsimile of 23 October 1998 said inter alia:

   “In the case of your client, it would appear that he would not gain re-admission to Jordan absent possession of a valid national passport.  It is likely therefore that he would be returned to his port of embarkation were he to attempt to enter Jordan now.”

3. In its reasons, the Tribunal said as follows:

   “The Tribunal has discussed the UNHCR letter with its author and is satisfied that the Tribunal’s own information on this matter (given below) is correct.  It was disclosed to the author that the Tribunal’s information came from the UNHCR's own database, Refworld.  The author did not agree with the Tribunal's interpretation of the law as it applied to this applicant and he implicitly acknowledged that it could raise doubts as to the accuracy of his advice.  The Tribunal’s information was faxed to the author.”

4. The facsimile in question is addressed to Ms Leona Simmons, research team leader of the Refugee Review Tribunal and refers to “your fax dated 11 January 1999”.  The facsimile of 11 January 1999 has not been tendered and counsel for the applicant is unable at this stage to throw any light on the circumstances in which the facsimile in question came to be transmitted.  Counsel contended that the facsimile in question is relevant to a submission which he seeks to make, based on section 476(1)(g) and section 476(4) of the Migration Act 1958.  The facsimile in question, after referring to certain legislative enactments in force in Jordan, says inter alia:

   In general, it would appear that all foreigners seeking entry into Jordan are required to possess valid travel documentation and visas, although the Minister for the Interior has the power to exempt individuals from these requirements.  The Minister’s power under the legislation seemed to be otherwise broad.

   It then goes on to say:

   “We do not believe that any of the foregoing contradicts the information contained in our fax dated 23 October 1998 nor the cable from DFAT dated 12 October 1998.”

5. I have not been taken to the DFAT cable.  The heading of the facsimile dated 23 October 1998 is “Bedoons from Kuwait”.  The heading in the facsimile in question is “Information Request - Bedoons in Jordan”.  Neither appears to refer expressly to the circumstances of the present applicant.  It may be that an inference could be drawn that the reference in the facsimile in question to 23 October 1998 is a reference to the facsimile of that date to which I have referred.  However, it is by no means clear.

6. It is significant that the facsimile in question does not refer to the communication between the member of the Tribunal and the author of the facsimiles.  It is not clear therefore, whether the facsimile in question was written in response to any request to clarify any communication which may have then taken place. 

7. In the circumstances, I am not satisfied that the facsimile of 19 January 1999 has sufficient connection with the matter to justify its admission at this stage.  However, if the applicant wishes to have the opportunity to endeavour to establish the circumstances in which the facsimile of 19 January 1999 came to be written, it may well be that that could be made relevant to an issue raised under section 476(4).  At this stage I reject the tender of the document.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             24 March 1999

Counsel for the Applicant:	C. Jackson
Solicitor for the Applicant:	Legal Aid Commission of NSW
Counsel for the Respondent:	S. Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 March 1999
Date of Judgment:	24 March 1999