Al-Asam v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1998-12-02|Before: Lindgren J, Nicholson J

REASONS FOR JUDGMENT 1 The applicant brings an application under s 476 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 13 January 2000. That decision affirmed the respondent's decision to refuse to grant a protection visa to the applicant.

The relevant legislative provisions 2 Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: "… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. 3 Article 1a(2) of the Convention defines a "refugee" to be any person who: "…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

Applicant's claims 4 The applicant made the following claims: (A) Personal circumstances: In his initial interview the applicant claimed he was an Iraqi citizen born on 1 July 1944 in Kadisio (also known as Diwaniyh). He stated he was married with nine children. He said he had a brother in Kuwait. In his protection visa application he said he was married in Dagara (16km north of Diwaniya) in Iraq in 1972. He was a Muslim Shi'a and his occupation was a stores manager. He completed secondary school education in 1963. From 1965-1968 he undertook military service. From 1969-1971 he managed a restaurant in Kuwait. He worked as a stores manager for the State Machinery Customs Department from 1973-1979 and for the State Mobile Company in Karbala from 1979-1987. His children were born in 1974, 1976, 1978, 1980, 1983, 1985 (triplets) and 1987. These children and the applicant's wife remain in Iraq. His mother, four sisters and three brothers live in Iraq. One brother and a sister live in Sweden. He claimed not to have seen his family since 1992. At the hearing the applicant stated his wife and three youngest children were living in Dagara with his mother and was supported by relatives and friends. He said he last saw his family in 1991. (B) Departure from Iraq: In his initial interview the applicant claimed he left Iraq in 1991. He then lived in Turkey for one year and for the rest of the time in northern Iraq and Iran. From Iran he claimed he travelled to Malaysia and Indonesia and then by boat to Australia. In his protection visa application the applicant stated he lived in Irbil in northern Iraq from January 1992 until January 1995. But he also claimed that from February 1991 until February 1995 he had various jobs in Turkey and Iran. He said from February 1995 until March 1999 he was a taxi driver and lived in the city of Qom, Iran. He claimed to have departed from Iraq illegally, travelling by car through Dohuk in northern Iraq to Turkey. He claimed he did not have difficulties in obtaining his passport, a false one, and that it had been destroyed. He had left Iran for Australia on 8 July 1991, arriving in Australia on 13 August 1991. In his departmental interview, the applicant said he had returned to northern Iraq from Turkey because the situation had improved in northern Iraq. He had lived in northern Iraq with another person for three years while his family stayed in southern Iraq. In Iran where he had gone in 1995, the applicant claimed to have been an illegal resident. At the hearing the applicant stated that when he went to Turkey in May 1991 he did not have any documents and had been smuggled across the border. He claimed to have stayed in northern Iraq from about May 1992 to 1995/96. He lived in a friend's home at Shaqlawa about 35km from Irbil. In Iran he had spent two years in Qom and two years in Teheran. He claimed to have had none of the usual identity documents issued to refugees by the Iranian Government such as a green card or a temporary residence card. He had not applied for refugee status there because he would have had to live in a refugee camp for a period of time. Nor had he applied in Turkey because he preferred to go back to northern Iraq. (C) Reasons for departing Iraq: In his initial interview the applicant claimed he left Iraq because he was wanted by authorities. He claimed he was involved in a 1991 uprising. He had then been working as a stores manager controlling food and supplies of consumer goods. After the uprising, he was held responsible for supplying food without authority to people involved in it in Kadisio and Dagara in southern Iraq. He was not arrested but considered he had to escape. This was because if a person stole Government money the death penalty would be imposed. In his protection visa application, as summarised by the Tribunal, he claimed he was in prison from February 1987 to February 1991. The Tribunal said he also stated that he had not been convicted of a crime or any offence and that he had lived at the same address in Dagara in Iraq from January 1989 until January 1992. He claimed that in the mid seventies he had written anti-government political articles on a part-time basis for a publication in the Kurdish newspaper called Al-Taaki which was edited by his cousin. His articles were published about four or five times a week and his name appeared as the author. In Karbala in 1987 he claimed to have been taken in and questioned by the authorities concerning his editor cousin. He had been released in February 1991 during the uprising (in Intifada) by the rebels and put in charge of allocating the food stores. It was when the Iraqi forces resumed control of the area that he had escaped and gone to northern Iraq. He had paid Kurdish people to smuggle him in to Turkey. In his departmental interview the applicant again claimed that he was in jail in Karbala in 1987-1991 but was released by rebels in 1991. He claimed that if he went back to Iraq he would be executed because he had escaped from prison and was involved in helping the rebels and had left illegally. At the hearing the applicant claimed he was arrested in February 1987 because he used to write articles about politics for the newspaper Al-Taaki in the period 1974-1979. He ceased writing in 1980 when the newspaper was closed down. He further claimed that in 1987 he was invited to become a member of the Ba'ath party but had refused. At the hearing the applicant also claimed that he would be executed not only because he had left Iraq illegally but also because he had been out of that country for nine years. At the hearing he further claimed that it was not safe for him to return to northern Iraq because he was not Kurdish and had no place to stay. He said he had thrown away his passport into the ocean as his boat approached Australia as everyone on the boat did the same thing so they would not be sent back.

Tribunal's findings 5 The Tribunal made the following findings: (1) The applicant is an Iraqi citizen and is a Shi'a. The Tribunal did not dispute his date of birth as 1 July 1944. (2) Shi'as in southern Iraq are in conflict with the Government. However, the applicant and his family are from Karbala, near Baghdad and did not encounter any mistreatment for reason of their religion. (3) His claim that he would be persecuted if he returned to Iraq merely because he is a Shi'a was not accepted. (4) As to his claim of imprisonment: (a) His claim that he was arrested and jailed in 1987 because of newspaper articles he allegedly wrote some ten years before was not accepted. (b) His claim that he was jailed from 1987-1991 merely because he refused to join the Ba'ath party was not accepted. (c) Because he said he was not arrested, he could not have been in jail. (d) Because of statements in his application, he could not have been in jail. (5) Consequently, his claim that he fled to northern Iraq in May 1991 was not accepted. (6) Consequently also, his claim that he escaped from custody or that the authorities subsequently came around to his home searching for him was not accepted. (7) Consequently also, his claim that he will be persecuted if he returns to Iraq because of an imputed political opinion arising from his refusal to join the Ba'ath party was not accepted. (8) Additionally, a claim that he would be vulnerable in northern Iraq because he was a known opponent of the regime was not accepted. (9) Whether or not the applicant's family constituted a particular social group, a claim for him that he faced a real chance of persecution because of his membership of that group was not accepted. (10) Because of the Tribunal's problems with the applicant's credibility in relation to his claims to have been in jail, it was not satisfied he left Iraq illegally. (11) The only reason why the applicant threw away his passport was because it was a genuine passport. (12) The Tribunal was not satisfied about the genuineness of the applicant's claim to fear persecution for a Convention reason. If he had a genuine fear of persecution in Iraq he would have stayed in Turkey and sought protection there. Furthermore, he failed to seek protection in Iran. (13) The applicant's claim that he would be in trouble in Iraq merely because he was out of the country for nine years was not accepted. (14) His claim that Iraqi authorities would be aware of his bid for refugee status in Australia was not accepted. Furthermore, it was highly improbable that if his departure was illegal or his seeking asylum became known that he would be severely punished unless there were other factors involved. As he was not a draft evader and was not a person of adverse interest to the authorities for any reason, including the fact that he was a Shi'a, he would not be persecuted for a Convention reason if he returned to Iraq. (15) The applicant's claim to have a well-founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he returns to Iraq was not established. (16) As to relocation to Northern Iraq: (a) The applicant could, in any event, safely return to northern Iraq via the UNHCR in Turkey. (b) A claim by the applicant that he has no connections with northern Iraq was not accepted. (c) The applicant would not be a person of adverse interest to Iraqi intelligence agents in northern Iraq. (d) Return to north Iraq was a reasonable option. (17) The applicant was not a person to whom Australia has protection obligations so that he did not satisfy the criterion for a protection visa.

Whether decision involved errors of law in interpretation and application of law or failure to observe procedures: ss 476(1)(e), 476(1)(a) and 430(1) of the Act As to "persecution" 6 This ground is particularised in terms that the Tribunal failed to consider whether any questioning by Iraqi authorities on the applicant's return carried the real chance of torture or other ill-treatment and that such questioning, although "routine", would amount to persecution. This ground relates to the Tribunal's findings nos. 13 and 14 above. 7 In reaching that finding the Tribunal considered conflicting country information much of which indicated that any refugees returned to Iraq would be at risk. However, the Tribunal preferred the views of the Australian Government's Department of Foreign Affairs and Trade ("DFAT") and ASIO on the basis those agencies were well informed and their information was reliable and independent. Those views were to the effect that the consequences for a failed asylum seeker on return to Iraq might depend very much on the actual history of the person concerned and the profile of his or her case. At minimum there would be an expectation of being questioned. Other country information made it clear that questioning of suspected persons in Iraq was routinely accompanied by torture. 8 The first way in which the ground is put is that an error of law was constituted by the Tribunal incorrectly interpreting the applicable law: the first limb of s 476(1)(e). Earlier, the Tribunal had referred to statements by the High Court and the Federal Court in discussing the Convention requirement that an applicant must fear persecution. There is nothing in that statement which shows that it incorrectly interpreted the law. Furthermore, examination of its reasons for decision shows that it did not reject the applicant's claim because it had misinterpreted the meaning of the term "persecution" and by reason of such misinterpretation had erroneously categorised treatment likely to be suffered by the applicant upon his return to Iraq as not amounting to persecution. The basis of the Tribunal's finding was its consideration of the independent country information and not any view that torture or other ill-treatment would not fall within the concept of persecution. 9 The next way in which the ground is put is that the Tribunal incorrectly applied the law to the facts: the second limb of s 476(1)(e). The error in application is said to be in the finding that the applicant would not be severely punished where it accepted that he would be interrogated. In my view no such error of law can be made out. There was a finding by the Tribunal that the "other factors" which might activate severe punishment were not present in the case of the applicant: see finding no. 14 above. Given its findings, the Tribunal correctly applied the concept of "persecution". 10 The third way in which this ground is pressed is as a non-observance of a procedure pursuant to s 476(1)(a) in that the requirements of s 430(1)(c) were not followed. The submission is that the Tribunal failed to make a finding on a material question of fact, that fact being whether there was a risk the applicant would be questioned and tortured if he was returned to Iraq and there appeared obviously as a failed asylum seeker without documents or any explanation for their loss and after an absence of nine years. 11 In support of this third prong of the argument, reliance is placed on the decision in Tharairasa v Minister for Immigration & Multicultural Affairs [2000] FCA 520 98 FCR 281. That was a case where the Tribunal was found to have failed to refer to allegations of beatings by prison guards during a period of imprisonment and an allegation of torture so that it erred by not finding whether this constituted persecution in the sense of serious enough harm when these were most material questions of fact. 12 Since the decision in Tharairasa the Full Court has delivered reasons in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469. As appears from those reasons, material facts are not confined to the facts the Act requires to be decided but are those facts made material by the way in which the Tribunal has approached the case as revealed in its reasons for decision. However, the requirement to set out findings on material questions of fact and refer to the material on which the findings are based is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with or that evidence contrary to that on which the findings are based requires to be addressed. 13 There can be no question that the Tribunal dealt with the material fact of whether there were "other factors involved" which would result in the applicant being severely punished should he return to Iraq. The full text of the reasons read: "Matters such as draft evasion, minor opposition activities in the past, relation to an opposition activist, refusal to join the Baath Party, whether or not the individual was a senior regime official and release of official secrets might all be taken into account. According to DFAT, there is no reason to believe that individuals who have committed minor non-political offences might be of interest to the Iraqi security and law enforcement authorities. Ordinary private citizens or soldiers and low level government clerks not working in a sensitive government area are unlikely to be of interest to the authorities. (DFAT Country Information Report No. 387/99 of 3 November 1999, CX38491). None of these criteria apply to the applicant. He is not a draft evader and, bearing in mind my findings, set out above, he was not a person of adverse interest to the authorities for any reason, including the fact that he was a Shi'a. I am not satisfied therefore that the applicant would be persecuted for a Convention reason, if he returned to Iraq." 14 The essence of the argument for the applicant is that, nevertheless, the Tribunal did not address, in addition, the question whether other factors could include the return of the applicant as an obviously failed asylum seeker without documents and any explanation for their loss and after an absence of nine years. The Tribunal had previously found that it did not accept the applicant's claim that he would be in trouble merely because he was out of the country for nine years: see finding no. 13. The Tribunal had also found that the applicant had destroyed his valid and genuine passport: see finding no. 11. The effect of this was dealt with by the Tribunal in the following additional portion of its reasons: "According to DFAT, given the volume of Iraqis who have left Iraq illegally, including through the use of falsified documents, and who applied for asylum in another country, it is unlikely that every case would be known or of interest to the Iraqi authorities. Indeed, given the payment of bribes, it can be assumed that the Iraqi authorities are not greatly concerned by the phenomenon and the actual treatment of a person on return will depend on the circumstances of the applicant's case, not just the act of illegal departure or asylum. (DFAT Country Information Report No. 387/1999, CX38491)." 15 It seems to me that on a fair reading of this passage, in the context of the reasons of the Tribunal, the Tribunal has not failed to address the material facts relied upon. The reference to the seeking of asylum and knowledge of it addresses the facts said to be in issue. 16 However, the particularised facts under this ground rely on a failure by the Tribunal to consider whether any questioning by Iraqi authorities on the applicant's return would carry the real chance of torture or other ill-treatment and whether such questioning, although "routine", would amount to persecution. In my opinion that particular issue was not one raised as a material fact by the way the Tribunal approached the case as revealed by its reasons. The purport of the last paragraph quoted from those reasons is that the Tribunal considered there was nothing in the circumstances of the applicant's case to arouse an interest in him by Iraqi authorities. The position here is therefore different to that in Tharairasa where the Tribunal's failure was one of failure to refer to allegations of past conduct in relation to the applicant. Here, the allegations are of future conduct not found to be probable and which therefore did not become material. Well-founded fear 17 This aspect of the first ground relies only on s 476(1)(a) in conjunction with s 430(1)(c). It is particularised that in determining whether the applicant had a well-founded fear of persecution for a Convention reason if returned to Iraq, the Tribunal failed to apply the appropriate test which in all circumstances included consideration of the question "what if I am wrong?" 18 This particular is based upon a passage in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 - 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. There those members of the High Court said that in determining whether there is a real chance an event will occur or will not occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. By way of example, they said that if a Tribunal finds it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution. In that case, the apparent confidence of the Tribunal in its conclusions meant that the Tribunal was not then bound to consider whether its findings might be wrong. 19 In my view the same position pertains here. The Tribunal did not accept that Iraqi authorities would be aware of the applicant's asylum application and was not satisfied he had left Iraq illegally. It also held that even if he did leave illegally and even if the authorities were aware of his refugee application it was "highly improbable" that he would be severely punished unless there were other factors involved. Having examined those other factors, the Tribunal was not satisfied he would be persecuted for a Convention reason if returned to Iraq. Additionally, the Tribunal held that even if it was wrong in any of its findings it was satisfied the applicant could safely return to northern Iraq and that this was a reasonable option open to him. 20 In supplementary submissions for the applicant it was contended that the accumulation of errors in the Tribunal's reasons (see reasons below on the ground of actual bias) and particularly certain country information support the requirement for the Tribunal to have asked the question "What if I am wrong". The country information appears in item 39 of a schedule of matters relevant to the ground of actual bias. The information is directed to examination of the statement by the Tribunal that it preferred the view of DFAT and ASIO on the issue of his application for refugee status and possible illegal departure from Iraq. For the applicant it is submitted a perusal of the documents identified shows they do not support the Tribunal's conclusions so that it has had either to misstate the evidence, selectively quote from it or rely on older outdated evidence to gain support for its conclusions. 21 Whatever the appropriateness of these submissions to the ground of actual bias, they cannot effect the conclusion I have reached above on this ground. The Tribunal was entitled to rely on the materials from DFAT and ASIO. Having done so it reached a firm conclusion and additionally asked what the position would be if it was wrong.

Absence of evidence or other material to justify certain findings: s 476(1)(g) 22 Section 476(1)(g) giving the Court jurisdiction in relation to a ground that there was no evidence or other material to justify the making of a decision is to be understood in the context of s 476(4). That provides that the ground is not to be taken to be made out unless, relevantly, the person who made the decision based the decision on the existence of a particular fact and that fact did not exist: s 476(4)(b). Paragraph (g) is understood in that way requires to be applied by this ground in relation to three determinations of the Tribunal.

First determination: "The applicant could not have been imprisoned and that he did not flee to northern Iraq in May 1991 as claimed by the applicant" 23 Finding (4) above sets out the Tribunal's finding on the applicant's claim to have been imprisoned. 24 The contentions for the applicant do not seek to dispute the entitlement of the Tribunal to find that the applicant was not imprisoned for refusal to join the Ba'ath party. However, the contentions challenge that portion of the reasons which reads: "This conclusion [the subject of the first determination] is supported by statements elsewhere in his protection visa application that he was living at home in the period 1989-92, and that he last saw his family in 1992. These dates are not consistent with his claim to have been in jail in 1987-91 and to have fled north in May 1991. Nor are they consistent with a claim to have participated in the "intifadah" in 1991 and to have been sought by the authorities." 25 There are four relevant pieces of evidence, namely: (1) In Part B of his Application for a Protection Visa the applicant was required to answer whether he had "been convicted of a crime or any offence in any country, including any conviction which is now removed from official records?" He ticked "No" in response. (2) In Part C of the applicant's protection visa Application he was asked in question 30 to "give details of all addresses OUTSIDE AUSTRALIA where you have lived for 12 months or more in the last 10 years". In response that showed that from January 1989 to January 1992 he had lived in Iraq in Dagara. (3) Question 34 of the same Application required details of all past employment. There the applicant stated that from February 1987 to February 1991 he was in prison. (4) The application was accompanied by a statement signed by the applicant in which he stated "…I was detained at the security detention centre from February 1987 until February 1991". 26 For the applicant it is contended that his response to question 30 can only be understood in the context of the answer to question 34 and the accompanying statement so that the response to question 30 should therefore be understood as a reference to the applicant's home address. The submission is that, so understood, there is no evidence on which the Tribunal could have reached the first determination in respect of imprisonment and that the issue of whether the applicant was imprisoned is a particular fact proved by the evidence referred to. 27 The case for the applicant also addresses the portion of the Tribunal's reasons preceding the statement just addressed. It read: "In any event, according to the applicant's evidence in his interview with the Departmental representative, he was accused or suspected of stealing government property and/or supplying food to the those involved in the uprising in 1991 but, he stated, he was not arrested per se" 28 It is submitted that a statement that he had been arrested after the "intifadah" does not mean that he was not in jail prior to the "intifadah", released during the "intifadah" and then fled after it was crushed. That submission is obviously correct. In his initial interview the statement which the applicant made concerning arrest was that he was not arrested after the "intifadah" when suspected or known to be responsible for the distribution of food and consumer supplies during the "intifadah". It is submitted therefore that the particular fact of whether or not the applicant was arrested and the conclusion reached in relation to it by the Tribunal can be proven to be based on facts which did not exist. 29 For the respondent it is firstly contended that the facts in the first determination are a conclusion based upon a series of particular facts and not themselves "particular facts": Adams v Minister for Immigration & Multicultural Affairs (1997) 70 FCR 591 at 596; Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 34 at par 34. Those authorities and decisions referred to in them make apparent that a particular fact is to be distinguished from the ultimate fact in issue or a conclusion based upon a series of particular facts, although one of those series of particular facts may qualify under s 476(4)(b). Both in its terms and as accepted in the submissions for the applicant, the first determination is a conclusion based upon a series of particular facts. The first particular fact was that the applicant had lived at home during the period 1989-1992. The second particular fact was that he stated that he was not arrested. 30 It was next submitted for the respondent that the applicant is required to establish positively that such a fact did not exist: Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 223. This is common ground. In my opinion the case made for the applicant in respect of each of the particular facts on which the first part of the first determination is based establishes that those particular facts did not exist. Question 30 of the application for a protection visa is to properly be understood in the context of the response to question 34 and the statement. It forms part of a whole and is to be understood in that context. Examination of the minute of interview shows that the reference to arrest arose only in relation to the deliveries which were post - "intifadah". 31 The submissions for the respondent then contend that the first determination was not a particular fact upon which the Tribunal's decision was based. Rather, the decision is said to be based upon finding no. (4)(a), the rejection of his arrest and jailing being based on writing of newspaper articles, and finding no. (4)(b), based on non-acceptance of his refusal to join the Ba'ath party. The submission for the respondent is that it was because of these two conclusions that the Tribunal subsequently decided that it did not accept the applicant's claim to have escaped from custody or that the authorities subsequently came to his home searching for him. In my view that is taking far too narrow an understanding of the reasons of the Tribunal. Having reached its views in relation to the propositions concerning the newspaper article writing and the Ba'ath party, the Tribunal went on to address "in any event" the two matters the subject of the particular facts in issue. In my view a fair reading of the reasons of the Tribunal shows that the decision of the Tribunal was based upon the non-acceptance of the applicant's claim that he was imprisoned from 1987 to 1991 not only because of the two reasons relating to the writing of articles or the Ba'ath party but also the two reasons contained in the particular facts. I consider that the applicant has made out a case for review pursuant s 476(1)(g) in this respect, subject to what follows. 32 It is apparent that the rejection of his evidence concerning imprisonment was at the core of the credibility findings made against him. If the Tribunal had found the applicant had been imprisoned that may have affected its conclusions in findings (4)(a) and (b) that his claimed reasons for arrest and imprisonment were not accepted. If one or both of these had been found, this could have led to a different conclusion on the issue whether he would be persecuted for a Convention reason if he returned to Iraq. 33 For the respondent it is submitted that even if the Tribunal made its decision based upon the existence of "a particular fact" which "did not exist" that would not be sufficient to make out the "no evidence" ground of review. Additionally, an applicant must establish there was no evidence or other material to justify the making of the decision affirming the decision not to grant a protection visa to the applicant. As expressed by Lindgren J in Pat Tai Choi v Minister for Immigration & Multicultural Affairs (Lindgren J, 2 December 1998, unreported), s 476(4)(b) is a "gateway" through which an applicant must pass before it is permissible for the Court to proceed to hold that s 476(1)(g) is established: Curragh Queensland Mining Limited at 221 and 223. In reliance on this it is submitted for the respondent that having regard to the evidence and material before the Tribunal and other findings of fact made by it, the Tribunal's ultimate conclusion was open to it. 34 If the Tribunal's finding to the effect that the applicant would not be vulnerable in northern Iraq is not affected by the other grounds of appeal yet to be addressed, this contention for the respondent is correct.

Failure to observe procedures: s 476(1)(a) and s 430(1)(c) and (d) Second determination: "The applicant could safely return to northern Iraq via the UNHCR in Turkey" Third determination: "The applicant's family could travel to northern Iraq if they wished" 35 In supplementary submissions the applicant abandons these particulars on a no evidence ground, having regard to the country information. Particular 2(c) remains relevant to the subsequent ground of actual bias. Particular 2(b) is now pressed as an error of law pursuant to s 476(1)(a) as a breach of ss 430(1)(c) and (d), without objection on the part of the respondent. 36 In the supplementary submissions for the applicant on this point reliance is placed on Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578. In Sameh, the Tribunal had found that Mr Sameh had effective protection in Iraq. The Full Court noted that the Tribunal had not made any specific finding that access to Iraq would have to be through Jordan, but it concluded that the Tribunal may have implicitly accepted that fact. The Full Court had earlier referred to the Tribunal having noted Mr Sameh's claim that, if he were to return to Iraq, he would need to go through Jordan because of the United Nations embargo. Further, the Court also noted that there was no evidence brought to the attention of the Court to suggest any other way in which Mr Sameh could reasonably get to Iraq. The Court further noted at paragraph 39 evidence that the Department of Foreign Affairs and Trade had been advised in October 1997 that the Jordanian authorities were very reluctant to transit through Jordan those Iraqis who had sought refugee status overseas and were being forced to return. The Court then concluded that the Tribunal had failed to address how Mr Sameh could reasonably travel to Iraq to access the effective protection which it had found was available to him. The Court then stated that: "In the particular circumstances of Mr Sameh's claim, that was a matter which the Tribunal was obliged to address. It was one of a series of critically factual matters which the Tribunal had to address to determine whether Mr Sameh has effective protection in Iraq." 37 The situation in the present case is different from that in Sameh. Here the Tribunal made a specific finding that the applicant could safely return to northern Iraq via the UNHCR in Turkey. That was a finding that was open to the Tribunal upon the country information that was before it, and to which it referred in its reasons for decision. The applicant did not claim he could not return to northern Iraq through Turkey, but only claimed he could not go back to northern Iraq because he was not Kurdish and that it was not safe there. Further, unlike in Sameh where evidence before the Tribunal was that the authorities of Jordan were very reluctant to transit through Jordan Iraqis who sought refugee status overseas and were being forced to return, there was no such evidence in relation to Turkey. Therefore, the particular circumstances of the applicant's claim did not require the Tribunal to address how the applicant could reasonably travel to northern Iraq or whether the Turkish government would allow him to return to northern Iraq via Turkey. 38 Further, in the course of its reasons for decision, the Tribunal referred to a substantial array of country information, including Document No. CX38491 dated 3 November 1999. Document No. CX38491 provides very recent (3 November 1999) specific advice in answer to question 23 in relation to whether a person from northern Iraq could safely and legally be returned there from Australia, without having to travel through Iraq itself. The answer provided was that: "Such travel would need to be through Turkey, and would need to be raised with the Turkish authorities. We understand that the Dutch have successfully made a number of voluntary repatriations via Turkey to northern Iraq. The border is controlled on the Iraqi side by the KDP, not by the Iraqi government." 39 There are references in several of the country information documents to the presence of the UNHCR in northern Iraq, and in countries adjacent to it, including Turkey (eg Document No. CX33769 referring to "UNHCR Ankara" and particularly the UNHCR June 1999 Update on Iraqi Refugees referred to by the Tribunal). 40 Accordingly, I agree with the submission for the respondent that the Tribunal did not breach s 430(1)(c) or (d) of the Act, and did not make any error of law in its finding that it was satisfied that the applicant could return to northern Iraq via the UNHCR in Turkey. In particular, in the circumstances of the applicant's claim it was not an error of law, and not a breach of s 430, that the Tribunal did not make a specific finding as to whether the Turkish government would allow the applicant to return to northern Iraq via Turkey.

Whether Tribunal misapplied relocation principle 41 The third ground of appeal is, in determining that the applicant could safely return to northern Iraq via Turkey, the Tribunal erred in law by confusing the principle of internal relocation with the principle of a safe third country and therefore misapplied both principles. Alternatively, the ground contends the Tribunal failed to observe the procedures required under s 430 of the Act. The ground relies upon the second limb of s 476(1)(e) alleging misapplication of the law and, so far as the alternative ground is concerned, upon s 476(1)(a) of the Act. 42 The third ground is particularised in three ways. The first two aspects relate to the possibility the Tribunal applied the principle of a "safe third country". In my view examination of the reasons of the Tribunal shows that it did not confuse the principle of internal relocation with the principle of the safe third country. 43 The third particular significantly expands the scope of the ground. It is that in applying the principle of internal relocation the Tribunal was required to determine that the applicant was not a refugee and the correct test was whether the applicant could be returned to Iraq on the basis that the applicant could then safely and reasonably relocate to northern Iraq. It is contended in the particular that the Tribunal erred in failing to apply the test as to whether it was reasonable, practical and safe for the applicant (and his family) to relocate to northern Iraq. 44 In submissions for the applicant it is said that the principle of internal relocation has not been applied where the persecution has been at the direction of the central government. It is submitted that rather it has been in circumstances where there has been a breakdown in law and order or where there is an errant provincial government that the principle has not been applied. It is submitted the correct question to be addressed is "has an applicant's national government fulfilled its duty of protection?" This issue was considered but not decided in Al-Amidi v Minister for Immigration & Multicultural Affairs [2000] FCA 1081. It is said it is surely impossible to reach that conclusion when the state, at its highest levels, is the agent of persecution and the refugee applicant is only free from persecution in those places of the state to which its writ does not run. It is submitted that in finding that return to northern Iraq was a reasonable option the Tribunal was saying that the applicant must relocate to that part of the country where the central government exercises no effective control. It is said this is a very different proposition to a person who is able to obtain the protection of his state in some parts of the country but not in others. 45 In Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 440-441 Black CJ, with whom Whitlam agreed, said that there was no warrant for construing the definition of refugee so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. He added that the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. He cited James C Hathaway, The Law of Refugee Status at p 133 where it is stated that "a person cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin". Black CJ continued at 442 by stating that notwithstanding real protection for persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole, if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. This requires examination of the practical realities facing a person to be carefully considered. 46 When Black CJ referred to the focus upon the more general notion of protection by "that country" he was not referring to protection by the government of that country. He was referring to the practical question of whether effective protection was available in a part of that country. I agree with the submission for the respondent that the fact a central government is unable to provide effective protection is but one of the many matters which must be considered in determining whether effective protection is available in a part of the country. It is the very fact that the government of Iraq has no presence in the United Nations supervised enclave of northern Iraq that is the basis upon which relocation to that area can be considered as providing effective protection by the country. An applicant who did not have a well-founded fear of persecution in relation to a particular region, and who therefore did not have a well-founded fear of persecution is relation to his or her country of nationality as a whole, could not claim to be a person to whom protection obligations were owed because the government in respect of whom he feared persecution was not present in the area of relocation. I am confirmed in this view by reference also to G S Goodwin-Gill, The Refugee and International Law (Clarendon Press, Oxford, 1996 p 74) and F Nicholson and P Twomey (eds) Refugee Rights and Realities p 332. 47 I also agree with the submission for the respondent that there is no requirement for the principle of relocation be considered on the basis of whether an applicant can safely and reasonably relocate to an area within his or her country of nationality after first being returned to that country of nationality. If, as a matter of practical reality, an applicant is able to relocate to a particular region within his or her country of nationality by reaching that region across the borders of adjoining countries, that is a proper basis for considering whether or not relocation is possible. In the present case there was country information in relation to northern Iraq which showed that Iraqi nationals have returned to the United Nations supervised enclave of northern Iraq across the borders of Turkey and Iran with UNHCR assistance. 48 For the applicant it is then submitted that the Tribunal misapplied the relocation test because it failed to carefully consider the practical realities facing the applicant in northern Iraq. 49 The Tribunal's finding (16)(d) occurred in the context of the following paragraph: "I am satisfied that the applicant can safely return to northern Iraq via the UNHCR in Turkey. That this is a reasonable option is supported by the applicant's willingness to return to northern Iraq in 1991-2. I do not accept his claim that he has no connections with northern Iraq. He lived, worked and traveled (sic) around in northern Iraq for three to four years in 1992-1995. According to the independent evidence, the Iraqi government has allowed citizens to travel to and from northern Iraq (Xinhua Newsagency,12 September 1996) which suggests the applicant's family could travel north if they wish. I do not accept the applicant's claim that he fears Iraqi intelligence agents. He ignored that consideration when he chose to go back there in 1992 and he lived there for the next three to four years without apparent difficulty. As I have found that he is not a person of adverse interest to the Iraqi authorities, I find that he would not be a person of adverse interest to Iraqi intelligence agents in northern Iraq. My conclusion that returning to northern Iraq is a reasonable option is supported by the independent evidence, set out above." 50 In Randhawa at 442, Black CJ referred to the range of realities that may need to be considered on the issue of reasonableness of relocation. He said they extend beyond physical or financial barriers and easily extend to other circumstances. He relied upon the statement by Hathaway at p 134 where the position is expressed as follows: "The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized." [Original emphasis.]" Black CJ relied on the circumstances in R v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm A.R. 7 as illustrative of the other circumstances he had in mind. Those circumstances were: For the applicant it is submitted that the Tribunal did not look at his basic civil, political and socio-economic human rights. It is said it did not consider such essential questions as whether and how the applicant could live in northern Iraq with his wife and family. The applicant's claim was he could not bring his family to northern Iraq and that he survived whilst there at subsistence level and in a friends house and not a place he could take his family. It is submitted the Tribunal did not address that question but only whether the family could travel to the north. Further, it is said there was no logic to the Tribunal's finding that as the applicant had found it safe in 1992-1995 it must remain safe. It is said the true question which the Tribunal should have asked is not merely whether the applicant would be free of persecution and able to survive, but whether it was reasonable for him to do so. This would involve questions as to whether the applicant could live a normal life with basic rights and freedoms, which must at the least involve being able to earn a living and being reunited with his wife and family. The submission is that the failure to deal with these issues reveals and error of law being a failure to make findings on material questions of fact as required by s 430(1)(c) giving rise to a ground of a view pursuant to s 476(1)(a). 51 In Al-Amidi Lee J considered the risk of resumption of control of northern Iraq by the central government was a factor along with other factors which needed to be considered. There, as here, the fundamental issues relevant to the reasonableness of the expectation the applicant and his family could live in northern Iraq were not addressed in the requisite terms by the Tribunal. No attention had been given by the Tribunal in Al-Amidi to the prospect of increased presence of Iraqi authorities in northern Iraq in the future, to the basic entitlements of the applicant in his future life there and the entitlements of his family. The Tribunal was therefore found to have erred in law either in failing to properly apply the law (s 476(1)(e)) or in failing to make findings on material questions of fact (s 476(1)(a) and s 430(1)(c)). 52 In the present case, the issue of relocation to northern Iraq was raised by the Tribunal with the applicant at the hearing. The applicant raised several matters in response, being reasons why he considered he could not return to northern Iraq. These were addressed in the Tribunal findings. 53 There were two relevant documents before the Tribunal to which it referred in its reasons. The first was Document No CX 32829 dated March 1998 which referred to the repatriation to northern Iraq of 8,735 individuals between January and March 1998 under a program fully funded by the UNHCR. The second was Document No CX38491 being a UNHCR update on Iraqi refugees dated June 1999. That stated: "UNHCR would also not object to the return to Northern-Iraq of asylum-seekers originating from the Iraqi Government - controlled areas, who have been found through acceptable and reliable procedures not to be in need of International protection, and who have sufficient family, community or political links in the North that would normally provide the possibility for a smooth integration." 54 For the respondent it is submitted that, having regard to the issues raised by the applicant and the material before the Tribunal on the issue of relocation, the Tribunal was entitled to come to its conclusion that it was a reasonable option for the applicant to return to northern Iraq. The issue raised by the submissions for the applicant, founded on the approach of Lee J in Al-Amidi, require the Tribunal, in the circumstances of this case, to have made further inquiry into the conditions in which the applicant (and his family) could live in northern Iraq. 55 In Randhawa at 443 Black CJ said the extent of the decision-maker's task in this respect will be largely determined by the case sought to be made out by an applicant. He concluded that having regard to the issues raised (and addressed) and to the material before the decision-maker at issue in Randhawa, she was entitled to come to the conclusion the applicant there could reasonably be expected to relocate elsewhere in India. In other words, Black CJ's earlier dicta at 442 of Randhawa is not to be read as prescribing a standard of inquiry for tribunals above and beyond the context of the case before the decision-maker. 56 I consider that in the context of the case before the Tribunal in this matter, it was likewise and for the same reasons, entitled to come to its conclusion on relocation. Al-Amidi is to be distinguished by the nature of the case there raised. 57 Of course, as Black CJ states in Randhawa at 443, the purpose of the inquiry as to relocation is to arrive at a finding whether an applicant's fear of persecution is well-founded in that it may be reasonable for him or her to relocate. In this proceeding there is a finding against the existence of the fear so that the finding of relocation was not, on that basis, necessary save for the purpose of the Tribunal's conclusion reached on the basis of "What if I am wrong?" in relation to the finding of the absence of a general fear.

Whether Tribunal's decision induced or affected by actual bias 58 The next ground of appeal relies upon s 476(1)(f) of the Act. "Actual bias" within the meaning of that paragraph will not be made out unless it is "firmly established" there is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 per Gaudron and McHugh JJ; cf Deane J at 91. What is required in the case where preliminary views are formed is that they are incapable of alteration: Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (1997) 81 FCR 71 at 123 per Wilcox J. The essence of the ground is that the evidence establish that the Tribunal was unable or unwilling to decide the case impartially, at least in some respect and whether doing so consciously or subconsciously: Sun at 127 per Burchett J. One indicia of that frame of mind may be "the repeated drawing of extremely adverse conclusions…on what, upon examination, turn out to be on the flimsiest grounds": Sun at 127 per Burchett J. 59 The ground is particularised in five respects. The first particular is that the Tribunal determined the applicant had made statements that were contrary to his claims, which determination was unsubstantiated in fact. Secondly, the Tribunal found the only reason for the applicant having destroyed his passport was that it was valid and would disprove his claims. Thirdly, it rejected the delegate's finding that the applicant had been imprisoned and had participated in the "intifadah" without informing the applicant of its concerns in this regard. Fourthly, it relied on country information adverse to the applicant's claims and contrary to other country information provided by the applicant or his advisers without giving the applicant any opportunity to answer. Fifthly, the Tribunal accepted and selected only information, whether by way of information from the applicant or country information, that was contrary to the applicant's claims. The first and fifth particulars raise matters of similar kind. The evidence relied upon is adduced generally by reference to the reasons of the Tribunal without assignment to one or other of these particularisations. 60 At the hearing Counsel for the applicant took the Court to 40 aspects of the Tribunal's reasons which is said to support the ground and its particularisation. Opportunity was given to the respondent to reply to these. For the applicant further submissions were received by way of reply. The essence of the case for the applicant on this ground was that the Tribunal picked and chose the material relied on, choosing matters adverse to the applicant, so that the only explanation is that it did so to fit a preconceived decision to reject the applicant's claim. This is said to be evidenced by repetition of errors, important omissions, lack of logicality and selectivity in material which give rise to the inference of pre-judgment. 61 For the respondent it is contended generally that when the various matters complained of by the applicant in support of this ground are examined separately and when taken together they are not sufficient to justify a finding of actual bias. It is said this is the case because cogent evidence is required to firmly establish as a fact that the decision-maker's mind was so prejudiced in the requisite manner. 62 Having examined the 40 aspects relied upon for the applicant, I find: (1) aspects 1, 1A, 4, 5, 6, 7, 24 and 24A all address the Tribunal's finding on imprisonment and related matters, which have also been addressed above. (2) aspects 15, 17, 19, 20, 24 and 30 all refer to some statement by the Tribunal in relation to which the respondent's case makes, in varying degrees, concession of an error on the part of the Tribunal. (3) aspects 2, 3, 8, 9, 11, 13 (last sentence), 14, 16, 17, 19, 21, 22, 23, 25, 26, 27, 29, 31 (final sentence), 32, 33, 35 and 39 are ones where I consider the respondent's submission states the correct effect of the passages relied on. (4) aspects 10, 12, 28, 31 (other than respondent's final sentence), 34, 36 and 38 are ones where I consider the applicant's submission, usually those in reply (save as to any assertion that the ground of actual bias is established thereby), states an arguable position in relation to the particular passages. (5) there is no aspect 18. 63 In finding whether the ground is made out the Court is invited to look to the cumulative and repetitive effect of the approach of the Tribunal. It is not contested for the applicant that the Tribunal may make non-reviewable error of fact and that it may select among material before it. Nor is it contested this Court cannot engage in merits review. However, taken individually, many of the 40 submissions suggest either that the Tribunal made errors of fact or should have chosen other material than it did or that the Court should have seen the merits differently. It is also the case that this Court cannot review errors of fact or lack of logicality and matters said to be in those categories are as consistent with those characterisations as with actual bias. 64 Examining the overall approach of the Tribunal and its alleged cumulative and repetitive approach, I do not consider it could be said the evidence relied on (considered in the light of my above findings concerning it) makes out or "firmly establishes" the ground. To test that opinion I have returned to the circumstances in Sun. In my view they are in marked distinction to those present here as to both quantity and content. Furthermore, the applicant's case on this ground does not make apparent that the repetitive drawing of inferences adverse to the applicant occurred "on the flimsiest of grounds", as was also submitted.

Conclusion 65 Aside from one important matter, I consider the applicant has made out a case for reconsideration in relation to the issue of his imprisonment. The important matter is that I also consider the Tribunal's ultimate conclusion that the applicant could relocate to northern Iraq is one which was open to it. Accordingly, for the above reasons, I conclude the application for review should be dismissed. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson J.

Associate: Dated: 23 February 2001 Counsel for the Applicant: Mr H Christie

Solicitor for the Respondent: Australian Government Solicitor

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