Al Azawi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 23 December 1999 in which the Tribunal affirmed a decision of the respondent's delegate refusing the applicant a protection visa. 2 The applicant was born on 21 January 1966 in Iraq and arrived in Australia on 12 June 1999. He arrived on a plane from South Africa, having left there using a false Swedish passport which he had already disposed of when intercepted by Australian immigration officers. He was interviewed on his arrival in Australia and said that he had deserted from the army in Iraq. In 1995, he left Iraq and, after travelling through Turkey, Jordan and the Lebanon, he went to South Africa. In South Africa, he said, he had sought refugee status but his application had not been dealt with by the time he left for Australia. He feared that he would be killed if he returned to Iraq. Nor, he said, could he return to South Africa because, as he was quoted as saying, "that country does not understand refugees. Too much confusion." 3 The applicant was taken into immigration detention. On 16 June 1999 he applied for a protection visa. He said in his application that he had arrived in South Africa in March 1997 and left in June 1999 when he departed for Australia. He specified Iraq as the country to which he did not want to return. An attachment to the application which was later sent to immigration authorities gave his reasons for this. In this document he described being drafted into compulsory military service in Iraq in 1986. Being a Kurd, and therefore being "unpopular" with the authorities, as he put it, he was sent to the front lines. He found this unendurable and later deserted from the army but subsequently gave himself up after an amnesty was announced for army deserters. He described undergoing incidents of brutality and torture in Iraq. In 1990 he was again drafted into the Iraqi army when it invaded Kuwait. Eventually in 1991 he deserted and remained in hiding until 1995 when he was arrested and taken to a camp for army deserters. In fear of undergoing further torture he managed to escape and flee to North Iraq. He then left Iraq for Turkey. He has a number of family members still living in Iraq. The applicant's statement described his going to South Africa and leaving that country but gave no account of his experiences whilst there. 4 Soon after he sought a protection visa a question emerged as to whether the applicant had been granted refugee status in South Africa. A letter was sent to him asking him about this. He responded that he had applied for refugee status in South Africa but had only obtained temporary residence pending approval of his application. He had not been granted full protection rights in South Africa. 5 Inquiries of the South African authorities made by the Minister's delegate adduced the response that the applicant holds a refugee exemption certificate in that country which was valid until March 2000 and which would entitle him to return to South Africa during that period. He would also be entitled to apply for an extension of the residence beyond that period if circumstances in Iraq remain unchanged. South Africa does not return to their country of origin people who are awaiting resolution of their applications for refugee status. 6 On 29 July 1999 the applicant's application for a protection visa was refused by the Minister's delegate. The essential reason was that, as the applicant could return to South Africa, Australia owed him no protection obligations under the Refugees Convention. On 30 July 1999 the applicant applied to the Tribunal for review of the delegate's decision. The hearing date was set for 10 September 1999. The applicant attended at the hearing with a migration adviser and also in the presence of an interpreter. The Tribunal asked the applicant a number of questions about his experiences in South Africa. The applicant said that he had been a street trader in Cape Town until not long before his departure, when he had moved to Johannesburg. He was asked what he feared in South Africa, and he said that he had been targeted by a group called PAGAD (People Against Gangsterism And Drugs). This was a Muslim-based organisation, which was targeting the applicant because of his status as a deserter from the Iraqi Army and his refusal to support Sadaam Hussein. 7 The Tribunal questioned the applicant closely about his experiences in South Africa and particularly his conflicts with the organisation PAGAD. The Tribunal's account of this questioning, as set out in its reasons, indicates that there were a number of discrepancies and inconsistencies in the applicant's account of his so-called persecution by this group. 8 After the hearing, the applicant's adviser sent a written submission to the Tribunal confirming details of the applicant's fears of persecution both in Iraq and South Africa, and providing newspaper reports about the group PAGAD. 9 On 23 December 1999 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. In its decision the Tribunal described the sequence of events since the applicant's arrival in Australia and the accounts he had given in his various statements, about his experiences in South Africa culminating in his evidence before the Tribunal. The Tribunal referred to "country information" relating to the activities of PAGAD in South Africa. By 1999 this organisation had become a terrorist organisation, which the authorities had difficulty controlling, notwithstanding that there was apparently a strong political will to do so. 10 The Tribunal did not deal expressly with the applicant's claim that he had a well -founded fear of persecution for Convention reasons if he returned to Iraq. There was no need to do so in the circumstances, because the Tribunal's ultimate finding was as follows: "However as the law in Australia stands, if a refugee has effective protection in a third country then Australia does not owe that person protection obligations under the Convention. For the reasons set out below the Tribunal is satisfied that the applicant has effective protection in South Africa and therefore there is no need to consider the applicant's claims in relation to Iraq." 11 The Tribunal went on to say that, given the history of the applicant's claims as to his experiences in South Africa, and given the inconsistencies in his accounts to the Tribunal, it did not accept that he was targeted by PAGAD so as to be subject to persecution for a Convention reason. Put blankly, the Tribunal did not accept that the applicant's accounts of this matter were credible, although it accepted that crime was generally rife in South Africa. 12 The application to this Court, which was made on 30 December 1999, was clearly made without the benefit of legal assistance and specifies no particular ground of review. 13 At the hearing today, the applicant was unrepresented. An interpreter was present to assist him with language. Mr Beech-Jones appeared for the respondent. 14 The fact that applicants to this Court are unrepresented naturally puts them at some disadvantage in the presentation of their case. The Court is concerned to ensure that no unfairness or injustice can result in these circumstances, and is particularly vigilant to examine the reasons of the Tribunal in order to ascertain whether some ground for review can be made out. Given the background of the Tribunal's decision in this case, the only ground which could be extrapolated from the circumstances would be, pursuant to s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"), that the decision involved an error of law. 15 It is relevant at this stage to briefly discuss the criteria to be satisfied in order to be eligible for a protection visa. These criteria are to be found in s 36(2) of the Act and subclass 866 in Schedule 2 to the Migration Regulations 1994. Both provisions require that the applicant for a protection visa be a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees as amended by the Refugees Protocol ("the Convention"). 16 Article 1 of the Convention defines a refugee as 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 theprotection of that country…" 17 Over recent years much case law has evolved in this court and in the High Court as to what constitutes a well-founded fear, what constitutes persecution, and the circumstances in which Convention reasons will be found to exist. Also relevant to the circumstances of this case is Article 33(1) of the Convention which provides: "No contracting State shall expel or return ('refoule') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 18 The situation in this case is in relevant respects very similar to that which arose in the Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 ("Thiyagarajah"). The High Court of Australia delivered its judgment in this matter only yesterday, 2 March 2000. The respondent in that case originally came from Sri Lanka, but had lived in France for some years before coming to Australia. He had sought and obtained refugee status in France, it being accepted that he had a well-founded fear of persecution in Sri Lanka. The fact that he could return to France was found by the Tribunal in that case to deprive him of refugee status in Australia. 19 Von Doussa J in giving the judgment of the Full Federal Court in that case (Minister for Immigration and Multicultural Affairs v Thiyagarajah [1997] 80 FCR 543) at 568, made the following observations: "3. The RRT has found as a fact that effective protection is available to the respondent in France, and that there is no real chance that the French authorities are unable or unwilling to provide such protection. This finding involves no error of law. It determines adversely to the respondent the question whether there was any potential for Art 33 to have application to the respondent, if he were a refugee. Accordingly, Australia did not owe the respondent protection obligations and the criterion laid down in s 36(2) of the Act for a protection visa was not fulfilled. 4. As there was no real chance that the respondent would suffer persecution in France, Australia was entitled as a Contracting State to deport the respondent to France without considering the substantive merits of his claim to be a refugee." 20 The High Court found no fault with this approach. It is directly applicable to the applicant's case, subject only to the outstanding question of whether the applicant had a well-founded fear of persecution in South Africa for Convention reasons. The Tribunal's adverse finding to the applicant in relation to that matter was based on its factual assessments and in particular upon its adverse view of the applicant's credibility. These assessments and findings were open to the Tribunal upon the material before it. Accordingly, on the face of the Tribunal's decision, no reviewable error has been demonstrated. 21 I asked the applicant today to point out any errors which he says were inherent in the Tribunal's decision. He responded that the Tribunal member did not obtain a police report which would have confirmed the applicant's version of a stabbing incident in South Africa. He said also that the Tribunal had treated as relevant the fact that the applicant had a girlfriend in South Africa, whereas this was in fact irrelevant to his circumstances. He also said that notwithstanding the Tribunal's finding that the new South African leadership is trying to contain the country's crime problem, to his knowledge the situation is deteriorating. 22 The problem in this case is that all matters relied upon by the applicant are matters of fact. They might well be relevant in merits review, but not in the limited type of judicial review which this Court can entertain under s 476 of the Act. 23 On the whole of the material before me I can find no basis for setting the Tribunal's decision aside. However a further matter was raised by the applicant, which had already caused me a degree of concern when I read the papers. This arises from the fact that, according to the material that was available before the Tribunal, the applicant's residence in South Africa expires in March 2000. So far as I could ascertain, the papers did not indicate a particular date in March when this was to occur. But the applicant this morning has said that it was on 1 March. Today is 3 March, and therefore, he says, he no longer retains any right to return to South Africa. 24 This brings me back to the High Court judgment in Thiyagarajah. The Full Federal Court in that case had found that the Tribunal had made no error of law. This was later affirmed by the High Court. The real issue which brought the case before the High Court related to the orders which the Full Court, by majority, then went on to make. The Full Court had been concerned that by the time it came to deliver its judgment, which was nearly two years after the Tribunal's decision, the respondent might no longer have the right to return to France. Accordingly, the case was adjourned in order to determine the appropriate orders to be made. In due course, on 4 March 1998, the Full Court gave its supplementary reasons and ordered, by majority, that the matter be remitted to the Tribunal with a direction that it consider whether facts now exist which impose protection obligations on Australia in relation to Mr Thiyagarajah. Sackville J dissented in the making of this order in the following terms: "In considering this submission it must be remembered that there is no basis in the Migration Act (or under any other legislation or under the common law) for setting aside the RRT's decision. In my view, whatever the scope of s 481 of the Migration Act, it is not an appropriate exercise that the Court's powers under that section to set aside a decision of the RRT, otherwise unchallengeable, solely for the purpose of allowing the RRT to take into account developments that have occurred since the date of the RRT's decision. The powers conferred by s 481 arise on 'an application for review of a judicially-reviewable decision'. In exercising those discretionary powers, the Court must take account of the outcome of the very application which enlivens the discretion in the first place. I do not think that, in exercising the powers conferred by s 481(1), the Court is entitled to take account of circumstances quite extraneous to the application for review. Nor do I think that s 28(1)(b) of the Federal Court of Australia Act (Cth) changes the position. If there is any potential injustice in this case (a question on which there is insufficient information to make any judgment), it arises from s 48A of the Migration Act, which prevents Mr Thiyagarajah from making a further application for a protection visa, unless the Minister thinks it is in the public interest to exercise the power conferred by s 48B. I do not think it appropriate to attempt to ameliorate possible injustice flowing from s 48A by remitting a matter to the RRT under s 48(1) for reasons unconnected with the grounds of the application to review the RRT's decision." 25 The High Court, by a majority of four to one, accepted the correctness Sackville J's approach. It therefore allowed the appeal and set aside the order of the Full Federal Court remitting the matter to the Tribunal. 26 This decision is of particular relevance to this case. Not only does it confirm the legal correctness of the Tribunal's approach to the applicant's substantive application, but it also deals with the matter which the applicant raised today, namely that his right of residence in South Africa might now have expired. The answer is clear, namely that this cannot be used as a basis for remitting the matter to the Tribunal. No error of law having been shown in the Tribunal's decision, I have no choice but to affirm that decision under s 481(1)(a) of the Act. The applicant's only recourse in these circumstances is to seek to obtain a determination from the Minister under s 48B of the act, that s 48A does not prevent him from again seeking a protection visa, notwithstanding that he has already unsuccessfully applied for one. 27 Accordingly, I affirm the decision of the Tribunal. The applicant is to pay the respondent's costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.