M v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application under s 476(1) of the Migration Act 1958 ("the Act") for review by this Court of a decision of the Refugee Review Tribunal ("the Tribunal") made on 23 March 2001, affirming a decision of the respondent, by his delegate, to refuse the grant of protection (class XA) visas to the applicant, his wife and children. The law to be applied is that which existed prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). background facts 2 The Tribunal found that the applicant was a citizen of Jordan and of Palestinian Arab ethnicity. He entered Australia on 6 August 2000. At the time of his arrival, he held a Jordanian passport and an Australian visitor's visa that was valid until a date in November 2000. The applicant's wife and three children arrived in Australia on 30 August 2000. They also held visitor visas at the time of their arrival. The applicant and his wife lodged applications for protection visas for themselves and their children with the respondent's department on 19 September 2000. In these applications, both the applicant and his wife made specific claims to be refugees. The children were listed as members of the family unit. 3 A delegate of the respondent refused the applications on 17 November 2000 ("the delegate's decision). On 24 November 2000, the applicant, his wife and family applied for review of the delegate's decision by the Tribunal. The Tribunal held a hearing on 22 February 2001. The Tribunal affirmed the delegate's decision. 4 The decision under review in this proceeding is the Tribunal's decision that it is not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason if he were to return to Jordan. legislative framework 5 Provision is made in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 ("the Regulations") for protection visas. Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol (collectively, "the Convention"). 6 Protection obligations may arise in relation to a person who falls within the definition of "refugee" in the Convention. A refugee is defined in Article 1A(2) of the Convention as any person who: … owing to 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 … . 7 Before the Tribunal, the applicant claimed that he had a well-founded fear of persecution if he were to return to Jordan "on grounds of his actual and perceived political opposition to the Jordanian government, his Palestinian Arab ethnicity, and his membership [of] the Palestinian organisation, Hamas". By virtue of cl 866.222 of Schedule 2, where a person making specific claims is granted a protection visa, members of his or her family unit may also be granted a protection visa, though making no specific claims of their own. the tribunal's reasons for decision 8 After considering the relevant legislation and the Convention, the Tribunal turned its attention to the applicant's specific claims and the evidence before it. The Tribunal first referred to the applicant's claim to be stateless, and to his educational, family and business background. It then referred to the applicant's account of his participation in demonstrations and other anti-government activities in the early 1990s, and to his joining Hamas. The Tribunal noted the applicant's claim that he was approached by authorities as he was leaving a mosque and that he was warned to stay away from political matters. 9 The Tribunal considered the applicant's claims concerning his membership of Hamas during the mid-1990s, when the Jordanian government began to restrict and monitor the activities of such organisations. It referred to his claims of detention and arrest on numerous occasions. It noted his evidence of being summoned to attend the Security Office in Amman in the late 1990s, and of being threatened and detained upon his refusal to provide the security authorities with information concerning Hamas activities. 10 The Tribunal referred to the applicant's attempt to withdraw from Hamas, to his conversation with a high-ranking member of the movement, and to his claim that he was advised by this person to take more time to consider his withdrawal because "he knew too much about the movement." The Tribunal also referred to the applicant's evidence that he was summoned repeatedly by the Security Office for information and to his further detentions following his repeated refusals to cooperate with the authorities. It noted his evidence that his wife had been attacked during a two-day period of detention and that he and his wife had reported the attack to police. 11 The Tribunal next referred to the applicant's account of events subsequent to August 1999 when, under Jordanian law, Hamas became an illegal movement but continued to operate, albeit illegally. It noted his claims of being harassed at work, having additional taxes imposed upon his business and having his children expelled from school. The Tribunal noted that the applicant was granted a tourist visa to visit Australia during the time when he was allegedly being arrested, detained and mistreated. 12 The Tribunal described his claim that, on a day in August 1999, Jordanian security officers followed him whilst he was driving his car. He said that he had eluded them, gone home, and later spoke to his wife by telephone. He said that she told him that she had been given a subpoena directing him to attend court that day. He claimed that his lawyer subsequently told him to leave Jordan as soon as possible. The Tribunal further noted the applicant's account of his, and later his family's, departure from Jordan. The Tribunal observed that the applicant: … claimed he would not be safe in Jordan because the government was harsh and repressive and they had punished him in the past for expressing his political opinion peacefully. Hamas believed he had betrayed the organisation and this had led to the attack on his wife. There was an extensive account of other evidentiary material, as well as of the submissions made to the Tribunal. 13 Under the heading, "Findings and Reasons", the Tribunal rejected the applicant's original claims to be a stateless Palestinian. Instead, it found that he and his family were Jordanian citizens. The Tribunal added: The Tribunal does not accept the assessment of the Applicant's adviser that the matter of nationality is irrelevant to the Applicant's general credibility. The matter of nationality is a serious one; it is not a matter of small importance. The principal Applicant is a well-travelled person who would be aware that in his travels he would be required to state his country of nationality or residency on various immigration forms. He was accustomed to using this information. His hesitancy on the matter then before the Tribunal is unconvincing. The Tribunal can find no other explanation for this denial of his citizenship except as an attempt to increase his chances of being recognised as a refugee. This does not of itself mean he is not a refugee, but it does mean that he has not been credible on this matter. 14 The Tribunal found that the applicant's identity as Palestinian was not a source of educational or economic discrimination against him or his family. In doing so, it accepted the accuracy of a document provided to the respondent's Department by the applicant. That document indicated that his daughter was attending school at the time when he claimed she had been expelled because of his political profile. The Tribunal also found that the applicant's evidence in relation to his business was inconsistent. In particular, it found that evidence provided by him to the respondent's delegate in relation to the sale of his business prior to his departure from Jordan was inconsistent with his claim that the Jordanian authorities had forced him "to close his business down". 15 The Tribunal considered a range of country information in assessing the applicant's core claim founded upon his membership of Hamas (e.g., Frank Tachau (ed), Political Parties of the Middle East (Greenwood Press, Conn, 1994, pp 444-445); Department of Foreign Affairs and Trade (1994), CIS On-Line Information Services, AM15990 & CE418108, 2/9/94, CX15604; US Department of State Report on Patterns of Global Terrorism (1995), CIS On-Line Information Services, April 1996, pp 20-21, CX24209; Lamis Adoni, "First Test for Karabati", Middle East International, No.522, 29 March 1996, pp 10-12, CX20987; and Reuters Business Briefing, sourced from BBC Monitoring, 11 January 2001, CX48470). It rejected the applicant's claim that Hamas was a peaceful organisation. The Tribunal accepted that the applicant became a sympathiser with Hamas in the early 1990s; that he participated in demonstrations at that time; and that he could have been stopped at a mosque and advised "to stay away from mixing religion with politics". It concluded, however, that there was nothing persecutory about such a warning from Jordanian authorities. In addition, the Tribunal found that, during the mid-1990s, the Jordanian government was keen to contain Palestinian anti-Israeli activity, rather than adopting a "policy of suppression or oppression of Hamas members and supporters". Nor did Jordan prevent its Palestinian citizens and residents from having "rejectionist" opinions. The authorities were concerned, so the Tribunal found, with those who (unlike the applicant) were "active in rejectionist organisations such as Hamas where the organisations carried out active (and violent) campaigns against Israel." 16 The Tribunal rejected as implausible that the applicant was unaware that intelligence officers would be present in mosques where rejectionist groups or individuals gathered. It also rejected his claim that, from the mid-1990s onwards, he was a habitual detainee and, therefore, constantly under surveillance for reasons of his pro-Hamas activities. It stated: [T]he Tribunal is not satisfied with the Applicant's claim that he was detained on many occasions from the mid 1990s onwards for reasons of his pro-Hamas activities. He has claimed at least ten arrests in one year, ten or twelve in the next and an increase in the number the following year. On any reading this would make him a serial offender and it is not plausible that the authorities would not have taken much more serious and long-term action against him. The alleged pattern of arrests and releases makes no sense if he was not, as he has claimed, a leader or prominent activist. It is implausible that no charges were laid against him or attempts taken to prevent him from travelling overseas. He took trips to several countries in the late 1990s. The Tribunal does not accept, that if he were an habitual detainee and therefore constantly under surveillance as he has claimed, that he would have been permitted to leave the country for his usual business trips. One of the aspects of Jordanian policy reported from various sources is that they have, on occasion, confiscated passports to prevent travel by known activists. It is for these reasons that the Tribunal does not accept the purported subpoenas and arrest and investigation notices as genuine. In an age when almost any document can be forged or fraudulently obtained, the genuineness of such, especially where Australia has a limited ability to test authenticity, is to be tested within the framework of all the claims. The Tribunal finds that the total number of claimed arrests and periods of detention and the claim of constant surveillance and harassment are contradicted by the Applicant's ability to continue with his businesses and travel overseas. As indicated by the country information cited above, the Jordanian authorities have taken away passports from those whom it suspects of being Hamas activists abroad. They had some five years in which to limit the Applicant's travels but did not do so. 17 The Tribunal also rejected the applicant's claim that the authorities had invited him to become an informant, given his low profile and lack of knowledge about Hamas activities at a national level. 18 The Tribunal found that the banning of Hamas in Jordan did not involve or constitute persecution and that Jordan's "crackdown" on Hamas was not violent. It rejected the applicant's claim that his membership of Hamas resulted in constant and increasing harassment amounting to persecution forcing him to flee Jordan. The Tribunal referred to the deportation to Qatar in November 1999 of four Hamas leaders following "a government clampdown on Hamas". In doing so, the Tribunal had regard to country information showing that there was "negotiation and mediation between Jordan's government and Hamas". The Tribunal said: [T]he evidence is that the Jordanian authorities have long experience in dealing with Hamas, that it is not a secret organisation and that deals are done between the government and the organisation. There are complexities and subtleties in the relationship rather than a stark one of government repression. The Tribunal then rejects the Applicant's claim that his membership of Hamas resulted in constant and increasing harassment of him amounting to persecution and forced him to flee Jordan. 19 The Tribunal found the applicant's account of his departure from Amman implausible and rejected it. It stated: It has considered the alleged timetable but does not accept that he could accomplish all he claimed in the time he has stated, and all without arousing the attention of the authorities as to his whereabouts. … . The Tribunal does not find his claim that he had shut the windows and locked the door means that he was protected from surveillance by the security authorities had they been interested in him. … . The Tribunal also rejects his claim that he could have reached the airport within twenty minutes. According to the Lonely Planet Guide, the airport is 35 kilometres from the city of Amman. The Applicant claimed that he left his house sometime after 6.30 and travelled by his own car to the airport without the security forces knowing. The Tribunal finds this implausible as it does his claim that he was able to pass through all the necessary checks before boarding an international flight with some last minute bribery arranged by a lawyer. … . The Tribunal also regarded the fact that the applicant delayed in using his visitor's visa as relevant to the issue of whether he had a fear of persecution. 20 The Tribunal noted that the applicant "gave contradictory evidence on the nature of the Hamas organisation, claiming that [it] was peaceful and yet also that it turned on him in a quick and vicious manner when suspicion fell on him that he was a government informant". It added: As the Tribunal has been unable to accept his account that the security authorities took an active and persecutory interest in him and tried to suggest to others that he was an informant, so it follows that it rejects his claim that this was the reason for threats against himself and the attack on his wife. 21 The Tribunal concluded that "whatever led the Applicant to sell his business and bring his family to Australia, it was not because he faced a real chance of persecution at the hands of the government authorities or of Hamas as he has claimed". 22 The Tribunal concluded by considering the applicant's wife's claims, and other evidence before it, including a letter from the applicant's lawyer. In connection with the wife's claim, the Tribunal said: The Tribunal accepts that this Applicant was attacked by some unidentified persons and that she suffered injury and on-going trauma. It accepts the evidence of a counsellor who has seen the Applicant wife on three occasions to the extent of her diagnosis as to the psychological difficulties faced by the Applicant wife. It does not accept that the counsellor is able to assess the actual source of and reasons for the attack on her. Her evidence, although somewhat vague, was that she was attacked by several people, that it was reported to the police but that they did not follow [it] up in a way she thought was satisfactory. The fact that it was reported to the police suggests, although this is only speculation, that the Applicant wife and her husband regarded it as criminal, rather than a politically-motivated, act. The evidence also was that they sought advice from a lawyer who appeared to have given the sensible advice that unless there was some indication of who the perpetrators were, it was difficult to do anything more. The Tribunal cannot speculate on the source of the attack. What it cannot do is accept that the attack on the Applicant wife was for a political reason or that the perpetrators were members of Hamas seeking revenge on the Applicant husband.