Hermiz v Minister for Immigration and Multicultural Affairs
[1999] FCA 1737
•9 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
Hermiz v Minister for Immigration & Multicultural Affairs [1999] FCA 1737
MIGRATION – application for order of review of decision made by Refugee Review Tribunal to refuse to grant protection visa – whether Tribunal failed to give adequate reasons – where applicant-daughter from Iraq claimed to have been harassed and pursued by a guard employed by Saddam Hussein’s son – where Tribunal did not accept the harassment or pursuit occurred as alleged – whether Tribunal made an error in not making findings as to what did happen – whether, in any event, applicants had subjective fear of persecution
Migration Act 1958 (Cth), s476(1)(a), s 430(1)(c)
WARINA MARCUS HERMIZ AND RANDA YOUSIF v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N986 OF 1999
EMMETT J
9 DECEMBER 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N986 OF 1999
BETWEEN:
WARINA MARCUS HERMIZ
FIRST APPLICANTRANDA YOUSIF
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
9 DECEMBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicants pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N986 OF 1999
BETWEEN:
WARINA MARCUS HERMIZ
FIRST APPLICANTRANDA YOUSIF
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
EMMETT J
DATE:
9 DECEMBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicants are citizens of Iraq. The first applicant, Mrs Warina Marcus Hermiz, is the mother of the second applicant, Ms Randa Yousif. Mrs Hermiz and Ms Yousif arrived in Australia on 14 October 1997. On 14 October 1998, they lodged combined applications for a protection visa. On 10 December 1998, a delegate of the Minister for Immigration & Multicultural Affairs refused to grant protection visas and, on 18 December 1998, the applicants sought review of that decision. On 12 August 1999, the Refugee Review Tribunal (“the Tribunal”) affirmed the decision not to grant protection visas. From that decision, the applicants have brought proceedings in this Court for review of the decision of the Tribunal.
The particulars given of the grounds, upon which it is said that this Court should interfere with the decision of the Tribunal, are as follows:
“1. Procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed: s 476(1)(a) and s 430(1)(c) and (d)
Particulars
The Tribunal failed to set out findings on material questions of fact and to refer to the evidence upon which those findings of fact were based, in relation to the following claims:
(a) The claim that the applicant, Ronda Yousif, had been pursued and attacked by private guards employed by President Saddam's son, Udai Hussein, and that her brother had also been attacked as a result of this incident.
(b) The claim that the applicants could not reasonably seek the protection of the State from Udai Hussein and his guards.
(c) The claim that the applicants could not reasonably be expected to relocate to another part of Iraq.
2. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an error involving the incorrect application of the law to the facts as found by the Tribunal: s 476(1)(e).
Particulars
(a)The Tribunal failed to properly apply the Convention definition of “refugee”, in that it failed to consider the applicants' claim as involving a well-founded fear of persecution based on the absence of State protection against sexual violence perpetrated by agents of the State.
(b) The Tribunal failed to properly apply the principles relating to the issue of relocation within Iraq.”
The applicants are Chaldean Christians. Mrs Hermiz stated that her family's problems began in 1984 when her husband had been forced to serve in the Iraqi army in the Gulf War between Iran and Iraq. He had been wounded and became ill in the fighting and had gone absent without official leave. Army officers had come to his home and found him there and had taken him away to resume his service. He had been mistreated for the duration of his service. When, after leaving the army, he had been recalled to his unit, he had suffered a stroke and died four years later. In addition, Mrs Hermiz's son-in-law had deserted from the army during the 1990 Gulf War and had come to Australia with his wife and gained refugee status here.
In December 1996, Ms Yousif, who was in the third year of intermediate school, had found she was being followed by a man in a car when she had been walking to school. This man had been wearing the uniform of the private guards of President Saddam's son, Udai, and had lewdly propositioned her. He told her that Udai would provide her with protection and money and that her family would not be able to approach her. She had been frightened and had hurried along to school.
After going home that day, she told her mother about what had happened. Her brother, who had just come home after being discharged from military service, had overheard. He insisted on escorting his sister to school and back. When he had been escorting her in that way, he had seen his sister being accosted by the man in the car. The son had told this man to behave himself and had been abused by the man who had shouted, "You Nazarene, are you trying to teach me, a Muslim, how to behave myself?" The man had brandished a gun and had threatened to shoot the son, but had been forced “to back off” because the incident had attracted public attention and a crowd had gathered. Other details of incidents involving the brother of Ms Yousif, in escorting her to and from school, were recorded in the Tribunal's reasons.
Mrs Hermiz said that she left home with her son and daughter and moved in with her sister-in-law. Later she had found that the windows of her house had been broken and the furniture smashed, and had been told by her neighbours that two high ranking men had done the damage. Mrs Hermiz said that she became frightened that her daughter would be kidnapped, raped and killed by Udai's guards in the same way as a young cousin had been. She said the police had been reluctant to investigate that case. She also said someone helped Ms Yousif to obtain a passport through paying a bribe and describing her as a housewife. The family then left Iraq, leaving by legal means.
According to their passports, the applicants left Iraq and entered Jordan on 27 March 1997. They left Jordan for Australia on 12 October 1997. They had received three month visitors’ visas for Australia in Jordan. In January 1998, their visas were renewed for three months, and in July 1998, the visas had been extended again. On 14 October 1998, the day those visas expired, the applicants lodged applications for protection visas.
Mrs Hermiz’s passport shows that she had travelled in and out of Iraq. She states that she went to Jordan on family visits. The Tribunal noted that a check of the passport stamps shows that, on three occasions, she wanted to visit Jordan. Since obtaining the passport in 1994, she had obtained exit permits that explicitly stated that she had received permission to leave Iraq on a single journey. It appears that a second step followed the issuing of the exit permit. This entailed a receipt being issued for the departure and was generally date stamped a day or some days after the date stamp of the exit permit. The third stage of the departure process appears to be the departure stamp at Trabeel, the Iraqi border post, when the traveller eventually crosses the boundary out of Iraq. All that indicated to the Tribunal that obtaining permission to depart from Iraq involved at least a three step process and was not a hasty or easily hastened affair.
Mrs Hermiz travelled through the Iraqi border to Jordan in January or February 1995, June 1995, and March 1997. On each of those occasions, the Tribunal found, she had received a three month Jordanian temporary residence visa and a police check. On the first two occasions, she had returned to Iraq one or two months before her Jordanian visas expired. On her last visit to Jordan in March 1997, she had been accompanied by her daughter. Both applicants, on entering Jordan, received three month visas expiring on 28 June 1997. They overstayed those visas, but received a further renewal up to 28 September 1997. They then received their visitors’ visas for Australia on 16 August 1997, and left for Australia on 10 October 1997.
Ms Yousif's passport, issued in March 1997, is marked with an exit permit stating that she is allowed to make one journey out of Iraq accompanied by her mother, permission having been obtained for that. The journey by Ms Yousif also involved a three-stage check by the authorities with stamps dated 22 March 1997, 23 March 1997, and 27 March 1997. The relevance of those findings will become apparent in due course.
Mrs Hermiz had eight children altogether, most of whom were living abroad at the time of the Tribunal's decision. Her brother came to Australia two months before the Tribunal’s reasons were delivered. One of her sons appeared as a witness and said that the authorities used to come to the family's home, and ask about his siblings who had gone abroad. Particularly, they were asked about the son-in-law, now in Australia, and a brother, both of whom had deserted from the army during the 1990 Gulf War.
Mrs Hermiz's son made no mention of violence or harm. His evidence was different from that of his sister and mother, who said that the authorities had bashed them repeatedly and had taken the two women to detention for a week. The Tribunal put it to the applicants that independent evidence, which is recorded in the reasons, did not demonstrate that Christians in Iraq were at risk of persecution. The applicants disagreed. They said that they would be arrested and persecuted on return to Iraq because the authorities there would know that they had gone abroad and unsuccessfully sought asylum. The Tribunal read to the applicants independent evidence on the unlikelihood of such mistreatment.
In assessing the applicants’ claims, the Tribunal accepted that various barriers may exist such as language and cultural differences which can affect their ability to provide a coherent, consistent and plausible account. The Tribunal accepted that the applicants face difficulties of proof. If adverse findings about the credibility of an applicant’s account were to be made, then depending on the degree of certainty with which those findings are made, a decision-maker may need to take into account the possibility that those findings might be wrong.
On the other hand, the Tribunal considered, correctly in my view, that it is not required to accept uncritically any and all allegations made by applicants. Nor does it follow that the Tribunal must have rebutting evidence available before finding that a particular factual assertion by an applicant is not made out. Taking those considerations into account, the Tribunal reached the conclusion that it had no doubt that the applicants had exaggerated or fabricated significant aspects of their claims in the hope of ensuring success of their application for protection visas. That is a critical observation in the resolution of the application before this Court.
The Tribunal did not accept that the applicants have a well founded fear of persecution for reason of their Christian beliefs, specifically as Chaldean Christians. In any event, that matter is not the subject of the grounds which are before this Court. The Tribunal accepted the applicants would have been questioned over the whereabouts of Mrs Hermiz's son-in-law, who deserted from the army during the Gulf War. The Tribunal considered that the authorities would have been making legitimate inquiries over someone who broke laws of general application by deserting while on duty.
The Tribunal accepted that the son-in-law and the applicants, complicit in his desertion, could have been regarded as having political views opposed to the government. However, there is nothing, so far as the Tribunal was aware, in the applicants’ evidence to suggest that they had any political involvement. The Tribunal concluded that there was nothing in their evidence that shows that the authorities were interested in the applicants for any other reason than the son‑in-law's desertion. There was nothing in their evidence that indicated to the Tribunal that the authorities were interested in their political beliefs. All that the authorities were interested in was the whereabouts of the son‑in‑law.
The fact that Mrs Hermiz travelled freely in and out of Iraq on several occasions between 1990 and 1997 does not suggest that the Iraqi authorities imputed to her any suspect political belief. Overall, the Tribunal was not satisfied that the applicants could be said to have been persecuted over Mrs Hermiz's son‑in‑law's desertion.
The matter that was the subject of the argument concerned the alleged incidents regarding Udai Hussein's guard. The Tribunal accepted that Udai Hussein grabbed women who took his fancy, acting brutally and with impunity. The Tribunal accepted that he used his guards to abduct women for him. However, the Tribunal was not satisfied with the credibility of the applicants’ claim that Ms Yousif was being targeted in such a manner. The Tribunal also did not accept that the pursuit alleged occurred or that the claimed confrontations with Mrs Hermiz’s son and Ms Yousif occurred in the way alleged by them.
The thrust of the applicants’ argument is that, while the Tribunal made perfectly clear that it did not accept Ms Hermiz and Ms Yousif as credible witnesses, it was nevertheless incumbent upon the Tribunal, having regard to the way in which its conclusions were expressed, to make a finding as to the actual facts concerning the incidents that are the subject of the evidence.
Attention was drawn to the language that I have emphasised above. It was said that, while the Tribunal rejected the applicants’ evidence that Ms Yousif was harassed in the way or in the manner she alleged, it was incumbent upon the Tribunal, if it did not find expressly that she was not harassed at all, to make a finding as to the manner or way in which she was in fact harassed. I consider that such a criticism of the Tribunal's reasoning is not justified. It is necessary to consider the specific findings made by the Tribunal in that regard.
Various allegations were made of the alleged harassment of Ms Yousif by Udai Hussein's guards. The Tribunal found that it was strongly implausible, even fanciful, that Udai Hussein would have been intent on ravishing a woman in the position of Ms Yousif in December 1996, when he was under intensive care in hospital paralysed from the neck down with stomach wounds and a gangrenous leg, that being the finding made by the Tribunal.
The Tribunal also found it strongly implausible that Udai Hussein would spend from 1995 to early 1997, as alleged, pursuing a girl without success, according to Ms Yousif's evidence, instead of snatching her off the street as was customary procedure according to independent evidence available to the Tribunal. The allegations were that one of Udai Hussein's guards attempted to rape Ms Yousif and, in fact, ripped her clothing in his effort to do so. The Tribunal found it strongly implausible that Udai Hussein's guards would attempt to rape a girl destined for their master, given his fearsome reputation.
There were allegations that one of Udai Hussein's guards brandished a gun but was, in effect, scared into quitting the scene because of a crowd that collected. The Tribunal found it strongly implausible that one of Udai Hussein's guards, brandishing a gun, would be cowed into quitting the scene if a crowd collected while he was threatening someone.
The Tribunal considered that both the applicants and Ms Hermiz's son, in giving evidence, failed to give clear answers as to when the alleged attacks took place. They eventually offered dates that contradicted previous evidence and confounded the Tribunal's attempts to fix dates by claiming not to remember how old they were at the time. Those failures, in the Tribunal's view, raised marked questions about the integrity of their evidence.
The Tribunal acknowledged that stress caused by tragedy can, in certain cases, lead to confusion and loss of memory over details. However, the Tribunal was not satisfied that that was the explanation for the applicants’ vagueness. Rather, the Tribunal was of the firm opinion that the evasions, confusion and inconsistencies were caused by the applicants’ inability to remember properly a set of fabricated or greatly exaggerated claims of pursuit by Udai Hussein’s guards.
I consider that, on a fair reading of the reasons, the Tribunal made an unequivocal finding that it did not believe that the alleged attacks on Ms Yousif had occurred. It may well be that the Tribunal acknowledged the possibility that there was some incident involving pursuit of Ms Yousif by Udai Hussein’s cohorts. However, I do not consider that the way in which the Tribunal expressed its findings rejecting the applicants’ evidence is such as to cast any doubt on the clear and unequivocal rejection of the applicants’ evidence. Even if there was a possibility that some incident did occur, there is no way in which the Tribunal could have made a finding of fact, having rejected the evidence of the applicants and Mrs Hermiz's son that anything occurred in the manner alleged or in the way alleged.
Section 430(1) requires, relevantly, that:
“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
………..
(c) sets out the findings on any material questions of fact.”The allegations made by the applicants were that Ms Yousif had been targeted in the manner alleged. The claims were that Ms Yousif was pursued and that she and her brother were confronted in the way alleged. There is a clear and unequivocal finding by the Tribunal that it did not accept those allegations. It would be a matter of pure speculation for the Tribunal to embark on making some findings on the basis of evidence which it had rejected.
In the circumstances, I do not consider that a complaint based on failure to comply with the requirements of section 430(1)(c) is established. It follows, and this is common ground, that the other matters that are raised in the particulars to the application do not arise. It is undesirable therefore that I express any view about the following matters:
· whether or not, in Iraq, women generally can be regarded as a particular social group for the purposes of the definition of “refugee” in the Convention;
· whether or not any observation by the Tribunal that Mrs Hermiz and Ms Yousif could have obtained respite by relocation in another part of Iraq.
There is, however, one further matter that merits comment. The Tribunal noted that the applicants did not appear to be in any particular hurry to leave Jordan after obtaining their visitors’ visas for Australia. The Tribunal considered that that was a factor that raises doubt as to whether their journey to Australia was for the purpose of fleeing persecution. The Tribunal adverted to the fact that the applicants did not claim protection for a year after coming to Australia. That, on its face, according to the Tribunal, did not suggest that they believed themselves to be in need of protection. The Tribunal also observed that the applicants must have been aware of the protection visa mechanism since Mrs Hermiz's son, Ms Yousif's brother, had obtained a protection visa.
The Tribunal was of the opinion that, having extended their stay in Australia twice through renewed visitors’ visas, the applicants applied for protection visas simply to go on staying in Australia by an alternative means, rather than out of actual need for protection. It may not be totally clear but, on one view, that is, in effect, a confirmation by the Tribunal that it did not accept that either of the applicants had a genuine fear of being persecuted for any Convention reason, whether or not any such fear was well founded. Having rejected the claims of the applicants of the matters which were said to be the basis for a fear of persecution, it must follow that the Tribunal was correct in concluding that there was no well founded fear of persecution.
In my opinion, the application should be dismissed. I order the applicants to pay the Minister’s costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 15 December 1999
Counsel for the Applicant: N.C. Poynder Solicitor for the Applicant: Craddock Murray & Neumann Counsel for the Respondent: S.M. McNaughton Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 December 1999 Date of Judgment: 9 December 1999
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