G v Minister for Immigration & Multicultural Affairs

The Tribunal Decision 14 The Tribunal reviewed G's claims and the evidence. It referred to the written application which claimed that he had three children born in 1985, 1987 and 1994. No reference was made to his oral evidence in which he told the Tribunal he had four children; a daughter born in 1985, and three sons born in 1990, 1987 and 1994 respectively. The Tribunal referred to G's oral evidence that his wife and children would come and visit him when he lived in Baghdad and Badra, although they continued to live elsewhere. It summarised questions put to him by the Tribunal at the hearing in relation to his ability to remain five years in Baghdad without being caught by authorities. It referred also to his explanation that the leaking of an intelligence report about his imminent arrest was obtained through bribery. It noted that G claimed to have raised the money to fund his journey to Australia from his father who was "well off financially" and that he had used a false Iraqi passport in another name. 15 The Tribunal adverted to country evidence about Iraq and the Government's Human Rights Record including its practice of executing summarily "perceived political opponents and leaders in the Shi'a religious community". The Tribunal observed:- "There are a variety of opinions in the country information regarding the treatment of refugee and asylum seekers on return to Iraq. In 1992 the Australian Department of Foreign Affairs and Trade ("DFAT") reporting on Iraqi Shias who fled to Saudi Arabia during and after the Gulf War stated: 'While in the beginning, most of them would have failed to qualify as refugees, the past year has led to a number of changes, e g apparent Iraqi government policies towards them, where many of them might now be genuinely in mortal danger should they decide to return to Iraq while the Saddam Hussein regime is in place.' " The Tribunal noted DFAT advice about the inconsistency and unreliability of amnesties offered to deserters and draft evaders. A 1993 cable indicated that a majority of Iraqi visa applicants who had visited the Australian Embassy since 1993 had been from minority groups seeking close family visits in Australia. It appeared that all had exited Iraq legally with appropriate exit approvals in their passports and retained the right to return to Iraq. A UNHCR report cited in a DFAT cable estimated that over the previous six months ninety‑seven percent of Iraqi applicants for refugee status in Jordan had left Iraq legally and had the right to return. The incidence of refugees returning to Iraq suggested that for some their claims for refugee status may have been inflated or bogus. 16 In 1994 an Amnesty International report cited by the Canadian Immigration and Refugee Board said that the historic pattern of human rights abuses against individuals who had returned to Iraq in reliance upon amnesties and the lack of information about those who had returned in reliance upon the 1992 amnesties meant that the risk of human rights violations remained a real possibility. The report said:- "Amnesty International has received as of yet unconfirmed reports that individuals that have returned in reliance on these amnesties have 'disappeared'." (DIRB, 18 January 1994, IRQ 16150.4) On the other hand a DFAT cable in 1994 reported that while Government amnesties granted for returnees from the Gulf War had lapsed, persons who sought refuge and stayed on in "enemy" countries could return without penalty. Most recent cases of returnees who returned under the supervision of the International Committee of the Red Cross appeared not to have suffered identifiable persecution. 17 A 1996 DFAT cable cited by the Tribunal advised that, of persons who left Iraq legally in the 1970's, many lived in Jordan and travelled to and from Iraq without difficulty. The treatment of a person who left Iraq illegally since 1991 would depend entirely on the reasons for and method of his illegal departure. It would also depend on conduct since leaving Iraq. If it became known that an Iraqi had applied for refugee status in Australia, the reaction of the Government in Iraq would depend on what claims had been made, how publicly and whether they had reflected badly on the Government of Iraq. The 1996 cable said:- "Criticism of the Government (other than on minor administrative and economic matters) - particularly criticism of President Saddam Hussein and his family - is not tolerated in Iraq and the consequences can be severe." Another unspecified Australian Government agency was said to have offered advice:- "In general, if refugee status applicants have not been involved in genuine dissident activity in Iraq or with a major opposition group outside Iraq, then they should be able to return to Iraq without fear of death or harsh retaliation.…The fact they have applied for refugee status in Australia should not prove detrimental to their future in Iraq. It is probable such returnees would undergo questioning on their reasons for leaving Iraq but so long as it was not due to opposition to the Government, then punishments would likely not be severe. It should be noted the Iraqi regime deals harshly with those it considers dissidents or opponents. Since these people (DIMA PV applicants) have been educated, employed and successfully escaped Iraq (either by legal or illegal means), it would appear the regime has not considered them a problem." Further, DIMA advice from the London based Committee against Repression and Democratic Rights in Iraq provided in May 1997 stated:- "…all Iraqi's who return to the country, other than those who have recently left for officially sanctioned trips will be interrogated with one exception…a number of elderly people who left the country around the time of the Gulf War to stay with relatives…a person who was absent from the country without explanation would…be suspected of sympathy if not activity within the opposition." DFAT stated in September 1997 that returnees who departed Iraq unlawfully would be likely to face harsh treatment. Yet another DFAT cable in October 1997 however suggested that the ease of return of Iraqi's who had migrated and had taken out citizenship of another country appeared to conflict with the story common to many Iraqi refugees that through the very act of applying for refugee status or citizenship of another country, the Iraqi regime regarded them as political traitors and that they faced the death penalty on return. 18 In 1998 DFAT reported that:- "interlocutors were not aware of any actual cases where asylum seekers had been returned to Iraq - although, given the number of Iraqis in Jordan who have unsuccessfully sought refugee status with UNHCR, it is likely that some of these have returned to Iraq. We could obtain no confirmation of the story that the Iraqi regime regards refugee and asylum applicants as political traitors." The consequences for a failed asylum seeker could depend very much on the actual history of the person concerned and the profile that his case had received in the country in which asylum was sought. 19 Further advice from the International Organisation for Migration also referred to by the Tribunal spoke of the extreme limitations and restrictions on information about the treatment of unsuccessful asylum seekers returned to countries such as Iraq and Algeria. However, information widely circulated by the UNHCR, HCR and other Humanitarian Agencies suggested:- "…that the return of unsuccessful asylum seekers to both countries generally constitutes a real threat to their safety and it is not all risk free. In other words, genuine fears of persecution surround the return of such persons to both countries." A Reuter's Report of 7 July 1999 referred to a decree issued by the Iraqi Government's Revolutionary Council declaring an amnesty for persons who illegally departed Iraq and staying the prison sentences and prosecutions of current offenders. 20 The Tribunal then went on to consider evidence relating to conditions in Northern Iraq including a report from representatives of the Dutch Embassy in Ankara that blanket acceptance of refugee claims was clearly not appropriate, having regard to the stability of conditions in the North. A Swedish delegation in 1999 undertook a fact‑finding tour of Northern Iraq and concluded that:- "…the conditions in Northern Iraq are not generally a basis for asylum on conventional grounds nor do they constitute a need for protection outside the country." There was a UNHCR report to similar effect which said that: "…gradual improvements over past months in the situation in Northern Iraq have acquired a sufficiently stable character to mitigate the Office's strong concerns over the return of rejected cases…UNHCR would not object to the return to their places of origin in Northern Iraq of asylum seekers originating therefrom, who have been found through fair and efficient procedures, not to be in need of international protection." This report was provided in June 1999. 21 A new law was introduced last year, with a prison term of up to ten years and "the confiscation of moveable and immovable property" imposed on anyone trying to leave the country illegally or assisting people to do so. The new law came three months after President Hussein granted amnesty to all Iraqis who had left the country illegally. There was evidence however, that the new penalties did not apply to those who left the country before the law was issued. 22 The Tribunal rejected G's evidence. It found it implausible that Iraqi Intelligence would not have been able to detect a "wanted political activist" living with his relatives for fourteen years. G's evidence was "fanciful and far‑fetched". The Tribunal did not accept that the arrest of his friends occurred or that of his brother or that his family had been harassed. It was satisfied that his claims were fabricated. 23 The Tribunal next turned to the question whether G would be persecuted if returned to Iraq. The way it dealt with this question was to refer to the independent evidence about "the likely treatment of returnees by Iraqi authorities". The Tribunal referred to the new law relating to persons leaving Iraq illegally, which apparently has no retrospective operation, and there is recent evidence of an amnesty for returnees. It also adverted to evidence that previous amnesties were not fully respected. The new law affecting illegal departures was apparently "of general application related to economic reasons and not necessarily politically related". The Tribunal was satisfied from the independent evidence that the treatment of returnees would depend upon their particular facts, personal circumstances and history. 24 The Tribunal then said:- "The evidence is that exit permits can be obtained by those with sufficient funds in Iraq. The applicant described his father as being well off financially and the whole family of his parents, wife and children left Iraq. There is evidence that millions of people have left Iraq for economic reasons. The applicant stated he had an Iraqi passport but it was false and in another identity. I do not accept that evidence, I am satisfied the applicant and his family were of no particular interest to the authorities and with their substantial financial resources he would have been able to obtain the necessary permits. I am not satisfied the applicant did leave Iraq illegally. I am not satisfied there is anything in his personal history or circumstances that would bring the applicant to the adverse attention of the Iraqi authorities." After referring to and dismissing the late contention that G would be subject to religious persecution as a Shi'ite Muslim the Tribunal returned to the theme of his treatment as a returnee and said:- "I presume the applicant would return to Iraq without a passport or other documentation and I accept that this could attract the attention of the authorities. I am conscious of the appalling human rights record of the Iraqi regime and of the economic and human devastation in that country. However, I am not satisfied that the applicant's background is such that he would come to the adverse attention of the authorities for reasons of political opinion or any other Convention reason. I am not satisfied he has a well-founded fear of persecution for a Convention reason." 25 The Tribunal did not address the possibility that the applicant might be a refugee sur place by reason of his application for a Protection Visa in Australia. That possibility was plainly raised in the application for review when it was said:- "The applicant's application for refugee status in Australia is another ground for the Iraqi authorities imputing political opposition." Reference was made to Refugee Review Tribunal decisions given on 1 July 1998 and 2 February 1999 in which such findings were made.

The Completeness of the Tribunal's Approach 27 The grounds for review converge upon one proposition which is critical to the disposition of this case. The Tribunal it is said failed to address the question of the effect of the application for asylum in Australia upon G's treatment if returned to Iraq as an unsuccessful asylum seeker. In particular, it did not address the possibility of persecution on the basis of political opinion imputed to G by reason of his application and the basis upon which that application was made in this country. 28 In support of the first ground it was submitted that although the Tribunal was not satisfied that G's background was such that he would come to the adverse attention of the authorities for reasons of political opinion, it did not advert to critical country information stating: (a) his application for asylum would if known to the authorities be seen as an act of treason; (b) the likelihood that it might be known to the authorities that he had applied for asylum because of the monitoring of the activities of Iraqi nationals in Australia; and (c) that the Iraqi authorities who routinely interrogate returnees were likely to interrogate someone who returned without travel documents and who had not reported to the Iraqi Embassy as required by a person who is abroad on officially sanctioned travel. (d) The assertion that a failed asylum seeker with an unremarkable political profile in Iraq would not face a real risk of persecution, was not supported by the DFAT report. Given the unequivocal nature of other country information it was submitted that there was no actual evidence or other material to justify the conclusion that there would be no serious risk of persecution to the applicant on his return, arising out of his "sur place activities". 29 In respect of the second ground, it was submitted that the Tribunal's observations about the treatment of returnees appeared to be infected with the view that political opinion as a Convention attribute was not applicable in this case because G's personal history and circumstances did not raise it, and that because laws penalising unlawful returnees were of general application and motivated by economic factors. It was submitted that once it was accepted that an application made for asylum could be regarded as an act of treachery, then the fear of persecution would be on account of perceived political belief and would come within the Convention. 30 The third ground dealing with the failure to make relevant material findings of fact attacked the Tribunal's failure to say why it concluded that G would not be entitled to protection having regard to country information about asylum seekers being viewed as traitors. 31 The Migration Act 1958 gives effect to protection obligations assumed by Australia under the Refugee Convention. The principal obligation is derived from the prohibition against refoulement in Art 33. That prohibition operates in respect of refugees as defined in Art 1A and proscribes their expulsion or return to the frontiers of territories where their lives or freedom would be threatened for a Convention reason. The obligation extends to the protection of persons whose claims for refugee status derive from events occurring outside their country of origin or by their activities abroad - Minister for Immigration & Multicultural Affairs v Mohammed (2000) 98 FCR 405 at 412. Mohammed concerned the case in which a person deliberately and in bad faith engaged in activities in the country in which he claimed asylum for the purpose of generating the very conditions that would qualify him for refugee status under the Convention. Such a person, as was pointed out in that case, will face great difficulty in succeeding with the claim but must nevertheless be assessed by reference to the terms of the Convention rather than cast out at the threshold by some overarching good faith principle. In the hierarchy of unworthiness a person is only marginally less undeserving who makes a falsely based claim for asylum and is thereby exposed to the risk of persecution in his country of origin by reason of an imputed political opinion. Such a person's claim is, however still to be assessed against the protection obligations which have been assumed by Australia under the Convention. This is the position reflected in decisions of the Court of Appeal in England which were discussed in Mohammed at 416-418. 32 In the present case the Tribunal had the submission squarely before it that the application for the protection visa itself gave rise to a risk of persecution based upon imputed political opposition to the Iraqi regime. The unnamed Australian Government agency report of 10 January 1997 accepted the probability that returnees who had applied for refugee status in Australia would undergo questioning on their reasons for leaving Iraq "…but so long as it was not due to opposition to the government then punishments would likely not be severe". On the other hand, it was noted that the Iraqi regime deals harshly with those it considers dissidents or opponents. Interrogation of returnees was corroborated by a 1997 report from the Department for Immigration & Multicultural Affairs. And the DFAT report of October 1997 referred to in the reasons noted that "…very few Iraqi's who seek refugee status in countries such as the UK and Canada (without first going through the system in Jordan), are returned to Iraq". The same report referred to a story common to many Iraqi refugees "…that through the very act of applying for refugee status or citizenship of another country, the Iraqi regime regards them as political traitors and they face the death penalty on return". A 1998 DFAT report could obtain no confirmation of the story that the Iraqi regime regarded refugee and asylum applicants as political traitors. Unnamed interlocutors had agreed that in practice the consequences for a failed asylum seeker might depend very much on the actual history of the person concerned and the profile that his case had received in the country in which asylum was sought. But the paucity of information about actual cases and a recognition of the degree of arbitrariness inherent in the Iraqi system made the interlocutors reluctant to comment further on the consequences that a returnee might face. The International Organisation for Migration, cited by the Tribunal referred to the extremely limited and restricted nature of information about the treatment of unsuccessful asylum seekers returned to countries such as Iraq and Algeria. However, information suggested that the return of unsuccessful asylum seekers to both countries generally constituted a real threat to their safety and was not at all risk free. 33 The Tribunal's treatment of the risk to G if he were returned to Iraq rested upon its implied finding that he had not left Iraq illegally and that there was nothing in his personal history or circumstances that would bring him to the adverse attention of the Iraqi authorities. It was not satisfied that G's background was such that he would come to the adverse attention of the authorities for reasons of political opinion. Nothing in the reasoning of the Tribunal indicates that it made any finding at all on the question whether the application for asylum gave rise to a real chance of persecution on the basis of imputed political opinion. 34 It may be that such a risk would be negatived by the confidentiality of the Tribunal's processes. On the other hand it is not implausible that Iraqi authorities, aware of the criteria for the application of the Convention could infer from the simple fact of an application for asylum having been made that the applicant had reflected upon conditions in Iraq. There was also material put before the Tribunal, although not referred to in its decision, that monitoring of Iraqi refugee claimants occurs within Australia. It is not for this Court to assess the risk but to determine whether the Tribunal has done so. On the face of it, the Tribunal has not addressed this question. 35 The question so formulated is not precisely as set out in the grounds of review but is subsumed by them and reflected in the written submissions. In my opinion, it is sufficient to say that this issue upon which the Tribunal's reasons are silent is one which attracts the procedural obligation under s 430 to make a finding of fact upon which the decision, in the practical circumstances of this case could turn - Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469. For these reasons the Tribunal's decision will be set aside and the matter remitted to the Tribunal to be determined according to law. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

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