P v Minister for Immigration and Multicultural Affairs

[2000] FCA 543

FEDERAL COURT OF AUSTRALIA

P v Minister for Immigration & Multicultural Affairs [2000] FCA 543

MIGRATION – protection visa – member of Iraqi opposition party – relocated to northern Iraq and subsequently Syria – travelled to Australia – effective protection available in Syria and northern Iraq – challenge to Tribunal’s findings of fact adverse to refugee status on basis that effective third country protection and internal relocation available – no reviewable ground disclosed – application dismissed.

P v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 35 of 2000

FRENCH J
28 APRIL 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W35 OF 2000

BETWEEN:	P Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FRENCH J
DATE OF ORDER:	28 APRIL 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The Applicant is to 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	W35 OF 2000

BETWEEN:	P Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FRENCH J
DATE:	28 APRIL 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. P is a citizen of Iraq. He arrived in Australia by boat without any travel documentation on 13 August 1999.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 21 September 1999.  That application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 8 November 1999.  On the following day, P applied for review of that decision to the Refuge Review Tribunal.  On 23 February 2000, the Tribunal affirmed the decision not to grant him a visa.  P, who is in the Immigration Detention Centre at Port Hedland, filed an application for an order for review of the Tribunal’s decision on 2 March 2000.  The application was in a common form, with common form grounds of review frequently used by applicants for refugee status who are detained at Port Hedland.  The stated grounds of the application are:

   “(a)The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.

   (b)The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it.”

   The Tribunal’s Reasons for Decision

2. The Tribunal made reference to the statutory framework and Article 1A(2) of the Refugees Convention and High Court authority on the construction of the terms of the Convention.  It then turned to consider P’s claims and the evidence put before it.  The Tribunal set out a written statement of the claims that accompanied the application and which was in the following terms:

   “Background
   I am a citizen of Iraq.  I am 48 years old.  I was married in 1984 in Hasabah Iraq to my wife Q.  We have five children, three daughters and two sons.  At present my wife and our children reside in Syria.  My parents are deceased.  My five brothers and three sisters remain in Iraq.  My ethnic group is Arabic and my religion is Muslim Sunni.  I have primary and secondary education.  I have also completed studies to be a Surveyor at technical college in Damascus.  I am fluent in Arabic and have a limited understanding of English.  Before I left for my journey to Australia I was unemployed.

   Why I left my country.
   In 1968 when I was 17 years old I joined the Ba’ath party.  It was the Iraqi branch that I joined.  That same year, on the 17^th July the current regime took control of the government.  The branch that I was involved in was more left wing and we didn’t support that control in 1968.  As an Arab I believe in the aims of the Ba’ath because it calls for unity among the Arab communities.  The difference between my branch and the current regime is that the current regime is a brutal dictatorship that persecutes people under the guise of upholding the motto of the Ba’ath party.  From 1968 the branch of the Ba’ath party that had control began to seek out and persecute those who didn’t approve of their rule.  As a consequence I went underground with others who opposed their control.

   By “underground” I mean myself and others who opposed the Ba’ath party control went underground because according to the regime we are an illegal and unlicensed party.  We are prevented from promoting our beliefs.  We produce leaflets that criticise the regime and meet in secret with only people that we can trust.  This makes it very difficult to recruit new people.  In addition to encouraging opposition to the oppression of Saddam Hussein we provide support to the wives and children of those imprisoned or executed for holding anti-regime beliefs.

   In 1995 around June one of my comrades R was arrested in Mosul.  He confessed under torture and named names of people that were in opposition to the regime.  My name was one of the names that was given to the Public Security.  As I was still a party member I had the benefit of informers who informed me that my name had been passed to the Public Security.  I disappeared for twenty days and then I went to the north of Iraq.  Others did not have the benefit of being informed.  They were detained and were executed by the Public Security in 10 July 1995.

   The Public Security went to my family home to look for me.  My mother was taken to a prison in Baghdad for two years.  I remained in the north fearful for my mother’s life but knowing it was not safe for me to return.  In north Iraq I was able to express my political beliefs with an amount of freedom.  There were organised groups there.  I stayed there for two years without my wife and children.

   I decided that I wanted to leave and begin a new life in another country.  My brother brought my wife and children to the north and we crossed the border to Syria at Zhako.  We lived in Damascus for two years.  In Damascus I was looking for a way out to leave Syria.  I was constantly living in fear for my life and my family’s because we were living illegally there and the political situation between Iraq and Syria was improving.  This brought with it a threat that Syria would hand over all the Iraqi national dissidents.  I knew that I had to find a safe place for myself and my family.  I made arrangements with a smuggler for my passage to Indonesia and from there I undertook my journey to Australia.”

3. In addition to this material the Tribunal was provided with a facsimile copy of a letter from the Committee for the Defence of Human Rights in Iraq dated 22 November 1999.  That letter purported to certify that P was subject to political pursuit owing to his protest against the ruling regime of Iraq and its terrorist policy.  He was compelled to flee to north Iraq and an absence verdict was issued against him.  The letter went on to say that he had stayed in north Iraq from 1995 to 1997 when he entered Syria with his family.  His remaining family in Iraq were said to have been subject to pursuit and embarrassment by security authorities.  His mother had been arrested and passed away “under vague circumstances”.  His brother ran away also “…consequent to arresting the victim Mohammad Abdul-Taei, and terminating him with his comrades at the hand of security agencies for his political bias against the policy of one party rule of Iraq”.  The letterhead of the organisation provided an address in Damascus.  The Tribunal referred to P’s evidence at the hearing that the party he belonged to was part of the original Arab Ba’ath Party and that when Saddam Hussein had taken control of Iraq that country had established its own Iraqi Ba’ath faith.  P did not subscribe to the policies and practices of the Iraqi Ba’ath Party. 

4. He had studied surveying in Syria from 1980 to 1983 and rented accommodation in a location near Damascus.  He had met his wife in Syria and they became engaged there but married in Iraq when he returned in 1984.  He worked in Iraq with his brother as a building contractor for eleven years.  Members of his political group met in groups of no more than three or four people.  They produced leaflets which they distributed at night.  The leaflets were distributed by being taken to public areas and dropped hoping that people would pick them up. 

5. The Tribunal referred to the ruthless nature of the Iraqi regime and the way in which it closely monitored its citizens.  Country Information indicated that it was a capital offence to hide someone wanted by the regime.  In that event the Tribunal found it difficult to understand how P could relocate to another area without coming to the attention of local residents in that area.  He said, however, that when he went to hide he stayed with relatives and did not tell them that the authorities wanted him.  The Tribunal put to him that it would have assumed the first places the authorities would have checked would have been his relatives’ homes.  He said the government had a rigid security system prior to 1990 and that what the Tribunal was suggesting would have been true at that time.  However, after the events of 1991 the situation had changed and bribery was common.  The economic situation in the country had become hard and daily life issues had become more important than security.

6. The Tribunal referred to P’s claim that he had fled to northern Iraq in 1995 and that there was a positive relationship between his party and the Kurds.  The political group he supported had an office in the Kurdish region in Sulemaniyah which was under the control of the Kurdish leader, Talibani.  P agreed with the Tribunal at the hearing that it was true that members of his party were there with the approval of the Talibani Kurds but had to maintain themselves.  Asked why it was felt necessary then to leave northern Iraq he said that there had been fighting between the Talibani and Barzani factions of the Kurds which made the region unstable.

7. The Tribunal referred to Country Information that the two factions had entered into a peace accord through the intervention of the United States and that the peace agreement was being implemented.  P said, however, the peace agreement had only been entered into because of pressure imposed by Washington.

8. Following the hearing the Tribunal sent to P and his solicitor a full copy of the relevant article to which it was referring and said it would also be taking into account the material cited in the delegate’s decision.  P responded to the Tribunal’s letter of 14 January in a facsimile received on 27 January in which he said he had left northern Iraq because of fighting between the two Kurdish factions, the occasional invasions by the Turkish Army and the presence of Iraqi intelligence members, particularly following an attack by Saddam Hussein’s forces on Irbil where, he said, large numbers of Iraqis were arrested.  P again stated he had no confidence that agreements between the two Kurdish factions would hold.

9. Turning to the situation in Syria, the Tribunal referred to P’s evidence that he had lived with his wife’s family when they were in Syria and that his wife and children were still living in that country.  His wife’s family had a business there and one of his wife’s brothers had established a branch of that business in Saudi Arabia.  While it was accepted apparently by P that Arabic people did not need a visa to enter Syria, he claimed there was a risk of Iraqis being deported from that country.  He accepted as correct the Tribunal’s understanding that Iraqis would only face such treatment if they had committed a crime.  A Country Information Report, to which the Tribunal had referred in putting that question to P, was sent to him and his solicitor for comment.  Copies of other documents including two DFAT cables and Country Information and Reuters Business briefing were also sent.  In a facsimile message received by the Tribunal on 27 January, P wrote:

   “I can’t return to Syria because I left that country by fake Iraqi passport with no permission for returning as Syrian authorities instructed in their telegram is leaving without returning.  Then I threw the passport in the sea when I was coming to Australia as all Iraqi refugees did when we were on the boat.”

   P also claimed that Iraqi citizens who wanted to return to Syria were required to have a valid passport in their own name and must have left Syria previously without an instruction that they could not return.  He said it was a requirement they would have to have a formal invitation and be sponsored by one of the Iraqi opposition parties in Syria.  They could only visit for two months, after which they would become illegal residents.  The party he belonged to was said to be in conflict with the Syrian government and this could be evidenced as the Syrian authorities had arrested the leader of that party in 1986.  They had arrested thirty other members of the party.  If they knew he was a member of the party he would also be arrested.

10. P told the Tribunal, apparently, that many other Iraqi parties had been ordered to leave Syria.  He named four people whom he claimed were in opposition parties in Syria.

11. P said that neither his wife nor her family could get permission for him to live in Syria legally because they couldn’t interfere with political issues.  The Syrian authorities might interrogate them if they tried and if the authorities discovered that he was a member of the Iraqi opposition group they could arrest him.  He said he had never claimed to have entered Syria illegally and that he had been able to enter legally after being sponsored by the National Union Kurdish Party in Damascus.

12. The Tribunal expressed serious doubts regarding P’s claims of involvement in an opposition party with Iraq.  It however said it would give him the benefit of the doubt and accept that he was a member of an opposition party to the Iraq Ba’ath Party and accept that membership of such a party could carry severe penalties.  It found, however, that by his own account P had obtained effective protection by moving to the Suleimaniya region where his party was accepted and had an office in Jalal Talibani’s area. 

13. On the issue of relocation the Tribunal rejected what it described as P’s “speculative view” of fighting between the two Kurdish factions in the north of Iraq.  The held that it was possible for P to return to that region in much the same manner that he left it by travelling through Syria.  He would not travel through any part of Iraq under Saddam Hussein’s rule.  This being the case, the Tribunal found it reasonable that P could return to the northern Iraq region and find effective protection from the harm he feared in the region of Iraq under the control of Hussein.  The Tribunal went on to hold also that P could find effective protection in Syria.  It noted that his wife and their five children continued to live in Syria together with his father-in-law who owns a business there.  It did not accept his contention that he was at risk of being accused of membership of a political party in Syria since he experienced no problem in this regard in the two years he lived there previously and undertook no political activities in Syria to expose himself to that risk.  Accordingly it found that a member of his family or his wife’s family could sponsor him to return to Syria or that the Kurdish group who originally sponsored him could do so again.  In relation to P’s claim of close ties between Syria and Iraq which could lead to him being expelled, advice from the Department of Foreign Affairs and Trade stated:

    “There have been rumours circulating over the past year that the rapprochement between Syria and Iraq will result in Iraqi refugees and dissidents in Syria being forced to return to Iraq.  Our assessment is that this is most unlikely.  A number of Damascus based Iraqi opposition groups with which we have regular contact have told us that they believe their positions are secure, and we are not aware of any evidence suggesting that Syrian relations with Iraq are going to progress to such a degree that Iraqi asylum seekers would be returned.

    The Tribunal accepted that advice and found that P did not risk refoulement to Iraq as a consequence of any closer ties between Iraq and Syria.  In summary, the Tribunal found P had no political involvement or profile in Syria for the two years that he was there and that he was not at risk of refoulement.  He had entered the country legally and remained there with his wife’s family.  He could be sponsored to enter Syria as an Arab either by a relative or an opposition organisation as he did when he first entered in 1997.  If he were to be placed in a situation of having to leave Syria, the Tribunal also held that he could find protection in northern Iraq and that it was reasonable to expect that he could relocate there.  The Tribunal was not therefore satisfied that P was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. 

    The Challenge to the Tribunal’s Decision

14. P was told in the course of directions hearings that the power of the Court in relation to review of Tribunal decisions was limited and that the Court could not overturn a Tribunal decision simply because it thought it was wrong on the facts.  P was asked to advise the Court on 24 March and 7 April of the reasons that he thought the Tribunal decision should be overturned.  He was given the opportunity to put those reasons orally on 24 March and given a further two weeks to prepare a written statement which could be read into the record and translated on 7 April.  The statement which P made on 24 March was concerned with factual aspects of the difficulties of relocation to northern Iraq.  The statement made on 7 April referred to two matters which he had been told by a solicitor from the Legal Aid Commission reflected errors in the Tribunal’s judgment.  The first of those related to the Tribunal’s finding that he could go back and live in Syria because his wife was a Syrian national.  He asserted that in fact when she married him she relinquished her Syrian nationality and became an Iraqi person also and had no way of being a sponsor for himself.  Moreover, he had no contact with any organisation in Syria that could support his application to reside in that country. 

15. At the hearing P resiled somewhat from that statement.  His wife was still evidently a Syrian national but having married an Iraqi citizen was treated as Iraqi. 

16. The second point related to the question of relocation to the north of Iraq.  The Tribunal was said not to have taken into consideration the instability in that area where there is no central government and several factions compete with each other.  There was no safety there from the regime of Saddam Hussein and no haven for people fleeing from him.

17. In addition to these points, P claimed at the hearing that during the proceedings before the Tribunal the interpreter would stop him talking from time to time to allow the statements he had just made to be interpreted and that the Tribunal would then move on to a different question or somehow shift the ground of the questioning.  Thus it was said he did not have a full opportunity to respond to Tribunal questions in relation to relocation to northern Iraq. 

18. As to that, it must be said that all the documentation which the Tribunal referred to in questioning P about the relocation issue in connection with both northern Iraq and Syria was specifically sent to him and his solicitors after the hearing so that he had ample opportunity to comment upon it and elaborate upon his position before the decision was handed down.

    Reviewable Error

1. The points made by P do not disclose any reviewable error.  In relation to sponsorship into Syria, the Tribunal found that he could be sponsored to re-enter Syria as an Arab by either a relative or an opposition organisation as he did when he first entered in 1997.  That is simply a finding of fact.  It cannot be, and was not, effectively challenged in this proceeding.  Similarly in relation to the question of relocation, there was evidence of conflicting views between P and the other sources to which the Tribunal had resort.  The Tribunal was entitled to form the conclusion that it did.

2. In the circumstances, no ground is shown for interfering with the Tribunal’s decision.  The application will be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated:             28 April 2000

P appeared in person.
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 April 2000
Date of Judgment:	28 April 2000