Najim v Minister for Immigration & Multicultural Affairs [2000] FCA 1470 | Case summary

Federal Court of Australia|2000-09-20|Before: French J

Factual Background 1 Abdul Wahab Abdullah Najim was born in Iraq on 29 May 1965. When he was two years old his family left Iraq and moved to Bahrain because his father had worked there. According to Mr Najim the members of the family left Iraq on a legal Iraqi passport. While in Bahrain they had temporary residency which was renewed every two years. He stayed there until 1990. According to a statement which he made by way of statutory declaration (sworn 7 November 1999) the family's temporary residency in Bahrain was cancelled in 1990 because of the invasion of Kuwait by Iraq. All members of the family were deported to Jordan, it then being the only country that would accept Iraqis. According to Mr Najim's statutory declaration, his father took his three elder brothers and sister back to Iraq with him in about December 1990. Mr Najim said he stayed with his mother and one of his sister's and his youngest brother in Jordan in the hope that they would be able to return to Bahrain. This did not eventuate. He says he stayed in Jordan from 1990 to 1995. Upon entry he only had a right to temporary residency for three months which was renewed for a further three months. He said that after two years in Jordan, King Hussein had given a pardon for those who overstayed their visa and gave them one week to leave. They stayed for a further two and a half years. Subsequently he said he was arrested and imprisoned for about three and a half months and his wife for a month. He paid for release. The authorities wanted to deport him to Iraq but allowed him to select which country he wanted to go to. He asked to go to Sudan because a visa was not necessary. He said he went to Sudan in February 1995 and remained there for a year. He claimed that his father and brothers had been arrested and interrogated on a number of occasions following their return to Iraq. He believed that they were imprisoned during 1997 and 1998. He said his father advised him over the phone not to return to Iraq. If he returned to Iraq he also would be arrested and interrogated due to his family's involvement in the Interfadeh and alleged anti-government behaviour. He claimed his father told him he was forced to sign a document prior to his own release from prison which said that he would inform the regime upon Mr Najim's return to Iraq. In the event, Mr Najim said he decided to go to Syria because it was a more civilised country than Sudan, the economic situation was better and his aunt was there. He left Sudan and arrived in Syria in February or March of 1996. He claimed that while he was in Syria he lived there illegally. He would go to the government to obtain residency but they would not give it to him because they said he didn't need it. They would not ask any Iraqi to leave Syria. However he claimed that when the government wanted to control the population Iraqis were the first to be expelled. This had occurred in 1993 before he arrived in Syria. For his children to go to school he had to obtain a certificate from the Syrian government. 2 Upon his arrival in Syria initially he could not find work. He said he then found work as an editor for the Al Mowkef newspaper. This was the official Al Dalwah Party paper which is anti Saddam. He was not a member of the party. He said he worked there because the money was good and he enjoyed the job. At first he did not believe there was any risk involved in working there because he was working for the printer who printed the paper rather than the author. However, his father advised him that the authorities wanted him and he realised the job could be causing him to be at risk. He said it was difficult to work in Syria. He was employed because of his experience with computers. He had studied at the American University in Cairo. His father would phone at the office where he worked. He said he would ask his father about the situation in Iraq. He would only ask about how they were. He would talk to him about everything except politics because he feared the phone call might be monitored by the regime. His father would call fortnightly. For a six month period he did not receive any phone calls. The next time he received a phone call his father informed him that he had been in prison. He said that his father had told him in a cryptic way that he had been arrested and so had Mr Najim's brothers. The reason his father did not come out and tell him about his imprisonment was because he feared there might be some reprisal from the regime. His father would not make these phone calls from home but from a telephone centre which was evidently a group of public telephones. He said that when his father and brothers were imprisoned they were made to sign a document that should he return to Iraq they would inform the regime. If they did not sign the document they would not have been released. 3 Mr Najim said that he worked at the newspaper in Syria for eleven months but left because he feared the Iraq regime might catch up with him and as a result of his work with the Al Dalwah newspaper would set him up for deportation, imprisonment and execute him and his family. He started his own business which was illegal. He began selling watches from a table on the side of the street in Sayedah, Zeinab. He said he did this until he left Syria for Australia. His wares were confiscated by the council of Sayedah Zeinab. He was of the view that he was being selectively harassed in contrast with other illegal street sellers. He is concerned that the relationship between Syria and Iraq is good at the present time. The good relationship commenced in 1997. To keep the relationship in a good state, he said, the Syrian government places pressure on Iraqis who reside in Syria. 4 Mr Najim contacted a well-known smuggler. They negotiated a price of $US5,600 to get him to Australia. Arrangements were made for him to go to Thailand. This included providing him with a false Iraqi passport, and an airline ticket to Thailand. After travelling to Thailand, he travelled to Malaysia by bus. He contacted another smuggler in Malaysia and travelled by plane to Eastern Malaysia. From there he said he caught a bus to Indonesia and then flew to Jakarta. Eventually he travelled to Bima in Sorabuya and then travelled by boat to Australia, ending at Ashmore Reef from which he was taken into detention at Port Hedland. He claimed that if he were to return to Syria he would be deported back to Iraq. In Syria he said there were Iraqi security spies which would place pressure on the local government to have him charged with a breach of a Syrian law. 5 Mr Najim applied for a protection visa on 8 November 1999. That application was refused by a delegate of the respondent on 9 February 2000. In the course of the reasons for decision of the delegate refusing the grant of the protection visa, reference was made to inquiries which the delegate and others had made in relation to the alleged incarceration of Mr Najim's father and brothers in Iraq. Reference was made to contact effected by an officer from the Department of Immigration and Multicultural Affairs at the Australian Embassy in Athens, with a Dr Hussein Al Durazi, a childhood friend from the time that Mr Najim had lived in Bahrain. The main issue raised in the conversation, as recorded in the reasons of the delegate, was that the applicant's parents and a sibling still resided in Bahrain. No mention was made of them being deported from that country, rather it was said that they left and there was no mention of family persecution in Iraq even though they maintained phone contact and written correspondence. 6 On 25 November 1999, the Australian Embassy staff member, according to the delegate, again spoke with Dr Hussein, who gave the member a phone number of the applicant's aunt in Bahrain and on the same day the Embassy staff member spoke to the applicant's aunt. She stated that the applicant's family had travelled during the Kuwaiti war to Jordan, staying until 1995. They had moved from Jordan to Syria in 1995 and the applicant's father, mother and sons, Abdul Karim, Alaa and his wife and sister, Salwa were residing at a Syrian address. Again, on the same day, the staff member rang the applicant's family home in Syria and spoke to someone who said he was his eldest brother, Abdul Karim. Abdul Karim stated to the Embassy staff member, according to the delegate's reasons, that the family lived in Bahrain until the Gulf war, but had to leave Bahrain as there was some antagonism between the two ethnic groups, Bahraini and Iraqi. It was said that they had moved from Bahrain to Jordan in 1991, staying there until 1995, that they had decided to move to Syria in October 1995, but did not hold resident status there, that the brothers, Zouheir and Souad reside in Bahrain and Abu Dhabi respectively and that Hussein is in Sweden. The applicant's brother was said to be happy to talk to the Australian Embassy staff member. He never asked about the applicant's circumstances. 7 In the delegate's reasons it was said in relation to Mr Najim's employment at the newspaper: "I have determined that this matter has been embroidered or fabricated to enhance the applicant's application for a protection visa. I consider that if the applicant did work for Al Mowkef newspaper and had concerns for his and his family's safety he would have changed residence address after leaving the newspaper." He did not consider the basis of his employment at that newspaper gave grounds for a well-founded fear of persecution. At paragraph 5.4 of the delegate's reasons he said: "I have determined that the applicant's family has not resided in Iraq since 1967 and agree that between the period 1967 to 1990 the family used to visit Iraq for holidays while resident in Bahrain. The applicant's departure from Iraq was lawful although they have not returned for many years." It was therefore apparent at the time of the refusal of the application for a protection visa that inquiries had been made and information obtained which contradicted an important element of the applicant's contentions as set out in his statutory declaration, that is to say, that his father and siblings were imprisoned in Iraq. 8 In the event, Mr Najim applied to the Refugee Review Tribunal on 11 February 2000 for a review of the delegate's decision. He was represented before the Tribunal by an immigration consultant Dr Al Jabiri, of Dr Al Jabiri & Associates. Written submissions were provided to the Tribunal prior to the oral hearing. The oral hearing took place on 28 April. The written submissions were provided on 26 April. At the hearing before the Tribunal Mr Najim gave evidence with the assistance of an Arabic interpreter.

The Tribunal's Decision 9 On 15 May, the Tribunal affirmed the decision of the delegate not to grant a protection visa to Mr Najim. Its reasons for decision set out in the usual way the legislation and the various elements of the Refugees Convention and principles of construction of the Convention criteria which are standard in such decisions. It then sets out what are called Mr Najim's claims and evidence. In relation to those, the following passages appear in the Tribunal's reasons, which I will quote because they are of importance to the ground of review in this case: "The primary decision-maker used some business cards and other material carried by the Applicant into Australia to make a number of calls to Syria without his authority. The primary decision‑maker spoke to the Applicant's family friend, his resident aunt, and a named elder brother, all in Syria. On the basis of this information, much of it apparently highly consistent and corroborated, the primary decision-maker concluded that the Applicant's father and brothers had never returned to Iraq. The information received indicated that the Applicant's parents were living in Syria and that the brothers who had supposedly returned to Iraq were living in Syria and/or Bahrain. The brother who spoke to the primary decision‑maker was identified as one of the very same brothers who was supposedly trapped in Iraq. Whatever might be perceived as to the ethics of the primary decision-maker's actions it is not for the Tribunal to judge (the DIMA officer did evidently obtain prior permission from the Applicant to make enquiries with the government authorities of Jordan, Syria and Bahrain). The Tribunal asked the Applicant to address this situation. In reply, he took much time to try to persuade the Tribunal that the person identified as his brother in Syria was no such thing, but merely some other person pretending to be him. Without going into all of the details in this document (they are well-covered on the tape‑recording of the hearing), the Tribunal put it to the Applicant that on his evidence so far, it could not accept that his father and brother had ever returned to Iraq, let alone that they were still trapped there, let alone that their presence in Iraq had alerted Iraqi authorities to his political activities in Syria. The Tribunal provided the Applicant and his adviser with an adjournment and a short period of time with the interpreter in order for them to discuss whether to continue pressing these claims, and how to do so, or to abandon them, focusing, say, on the claims about the Applicant's protection status in Syria and his work with the newspaper there. At the end of the adjournment, the Tribunal learned that the Applicant and adviser had not discussed a way forward in this matter at all. However, after further examination of the problems with his claims, the Applicant withdrew all claims about his father and siblings having returned to Iraq and said that they were living in Syria. This means that they have all been outside of Iraq since 1967 when the Applicant was two years old. This also means that no members of the Applicant's family could have alerted Iraqi authorities in Iraq as to his activities in Iraq; therefore this could not possibly have been the reason why he quit working for the newspaper." 10 The Tribunal went on to deal with the question of the alleged selective harassment in Syria and then said that: "At the end of the hearing, the Applicant claimed his entire family in Syria had recently disappeared. This claim did not seem to sit with the information from his brother or his aunt or with his own claim, shortly after the end of the adjournment, to the effect that his family was indeed residing in Syria. He went on to say that he had heard they had moved to Lebanon, which claim seemed to contradict the one about the family's disappearance." The Tribunal put to Mr Najim that this was an entirely new claim and then learned that he had not even shared it with his adviser at any point. Had he persisted with his claims about his father and brothers there would still have been ample opportunity prior to this moment for him to state that the rest of his family had recently disappeared or alternatively moved to Lebanon. He provided no satisfactory explanation as to why this claim had not hitherto been introduced. The Tribunal then referred to country information and the situation in Iraq. It accepted that the Hussein regime in Iraq is extremely repressive and that Mr Najim is a national of that country. However it was not satisfied that his family would be regarded as one whose absence from Iraq would lead to the imputation of political opinions opposed to the Iraqi regime notwithstanding Mr Najim's brief and low-level technical association with the Al Dalwah newspaper, Al Mowkef. This is because, the Tribunal said, they left so long ago and because apart from fabricating a story around his father's claim to return to Iraq in the 1990s Mr Najim did not attribute to them any other, let alone earlier, history of anti-Saddam activism. 11 The Tribunal found that it may well be that Mr Najim's father and brothers either once or occasionally re-entered Iraq, but if they did the evidence overwhelmingly supported the conclusion that they were allowed to leave again for they have all been accounted for in Syria and/or Bahrain. The Tribunal concluded its reasons observing that Mr Najim had shown himself to be an overwhelmingly unreliable witness. It considered itself well entitled to doubt all of his claims, but had nevertheless endeavoured to consider them to the fullest extent possible. On the evidence before it, it concluded that he and his family enjoy effective protection in Syria and that for this and other reasons he did not face a real chance of convention related persecution in Iraq, therefore he was not a refugee.

The Application for Judicial Review 12 The applicant filed an application for an order of review of the decision made by the Tribunal on 25 May. Initially he filed it himself and it did not contain any intelligible grounds of review. Subsequently, however, Mr Colvin accepted appointment as pro bono counsel to represent him in this matter for which the Court is very grateful. Mr Colvin has reframed the application and an amended application and grounds were filed in Court today. An earlier amended version had been filed but some of the grounds were withdrawn. In the end the grounds of review came down to one issue and that is whether the Tribunal failed to observe procedures required by s 424A of the Migration Act 1958 (Cth). 13 The particulars of this ground are set out in the application as follows: "2. In making the Finding, the Tribunal did not observe the procedures required by s 424A of the Act in that the Tribunal: (a) required the Applicant to elect whether to withdraw his claims the subject of the Finding without first allowing the Applicant to comment or provide an explanation; (b) required the Applicant to answer questions "yes" or "no" rather than comment or provide an explanation; (c) allowed the hearing to proceed in circumstances where it was evident that: (i) the Applicant was having difficulty in understanding the interpreter; (ii) the interpreter was having difficulty in understanding the Applicant; and (iii) there had been mistranslation by the interpreter of evidence of the Applicant relating to the Finding; (d) interrupted the Applicant without affording the Applicant any reasonable opportunity to answer questions from the Tribunal; (e) conducted the hearing in a manner that caused the Applicant (and would have caused any reasonable person in the position of the Applicant) to infer that no comment by the Applicant would cause the Tribunal not to make the Finding; and (f) misconstrued the answers of the Applicant; and thereby failed to provide a genuine opportunity to the Applicant to comment upon the subject matter of the Finding." 14 Mr Colvin disclaimed any suggestion that this was a case about interpretation or the interpreting of the applicant's answers. The issue relating to the interpreter went solely to the question of the affording of an opportunity to respond to matters put to him by the Tribunal pursuant to s 424A. Further, so far as particular (e) is concerned, although that looks like on the face of it a natural justice ground, of course, it cannot go forward as a separate natural justice ground, natural justice being excluded from the purview of the grounds of the Court in these proceedings save for actual bias which is not asserted.

Statutory Framework 15 Before turning to the point to be made about s 424A of the Migration Act, the Tribunal's compliance with it and Mr Colvin's submissions in that regard, I refer to the terms of the section itself which provides in the relevant parts: "424A(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it."

Subsection (2) is not relevant for present purposes. Subsection (3) provides: "This section does not apply to information: (a) that is not specifically about the applicant or another person, is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 16 Subsection (3) therefore does not apply in this case. Section 424B then provides in subsection (1): " If a person is . . . (b) invited under section 424A to comment on information; the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances. (2) If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. (3) If the invitation is to give information or comments at an interview, the interview is to take place: (a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within the prescribed period or, if no period is prescribed, a reasonable period." Then subsection (5): "If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to: (a) a later time, within that period; or (b) a time within that period as extended by the Tribunal for a prescribed further period; and then the response is to be made at an interview at the new time."

Tribunal's Inquiries About Adverse Information 17 The information which is said to be the subject of the Tribunal's obligation under s 424A in this case was the information which had emerged from the original delegate's reasons and the inquiries made which were referred to in those reasons by Australian Embassy staff about the whereabouts of Mr Najim's family in the Middle-East and, in particular, the disclosure emerging from those inquiries that neither his father nor siblings were imprisoned in Iraq as asserted and were in fact either in Syria or Bahrain. I assume for the sake of argument, that these are particulars of information of the kind to which s 424A applies. Certainly, it is information that the Tribunal, as appeared from its reasons and also from the course of the oral hearing, would constitute the reason or a part of the reason for affirming the decision under review. 18 Mr Colvin took the Court through the transcript of the proceedings before the Tribunal at which, as I indicated, Mr Najim was represented, to demonstrate that the Tribunal member frequently interrupted Mr Najim in his answers, that there was difficulty at times in the interpretation of matters and that in a sense Mr Najim was not given a fair opportunity or a reasonable opportunity to respond to the Tribunal's concerns. Certainly, the Tribunal member appears to have been interventionist and perhaps interventionist beyond the level that might be desirable having regard to the need to allow a person giving answers through an interpreter to complete the answers and give a coherent account of his position. I was given references to instances of interruption prior to the critical point on which the application of s 424A bears and that was by way of, as it were, background or scene‑setting. 19 At page 13 of the transcript, the Tribunal member indicated to Mr Najim that he was going to ask him about his parents. The member referred to the claim in the earlier application that Mr Najim's father and brothers went back to Iraq and had suffered trouble in relation to the Intefadah of 1991. The member said: "You claim that your father and brothers returned to Iraq and that they were persecuted by Iraqi authorities over a perception, a perception of their involvement in the "Intefada" of 1991."(sic) Mr Najim replied that they had returned to Iraq in 1990. He confirmed his claim that they remained in Iraq and that they were still there. He was asked whether he had read the delegate's decision relating to his application and whether it was read to him or explained to him in Arabic. He said he had read it with the help of other people. The Tribunal member then said he had to go over a couple of things that were in the decision. The first question was whether Abdul Karim was one of the brothers who went back to Iraq? Mr Najim said yes, he was. The Tribunal member asked whether he still remained there. Mr Najim said he did. Mr Najim also confirmed in response to a further question that another brother called Zuhir was also in Iraq and a further brother Hussein went back there. He also said he had a sister, Soad, who was in Iraq. 20 The Tribunal member then asked whether he recalled that the delegate had made some investigations, apparently without his permission. Mr Najim replied that he had not given permission for those inquiries. Then there seems to have been a concern in terms of the translation, raised by the adviser. The Tribunal member put a comparatively lengthy proposition to Mr Najim. He put that what had come out of the investigations was an interview with Abdul Karim in Syria, not Iraq, an interview with his aunt in Syria, and a number of discussions with a Dr Hussein Al Durazi. The member made a side reference to the legality of the process of obtaining that information and said that was not a matter for the Tribunal. He said: "…three- at least three, three witnesses state that your family has been residing in Syria. And that the family members that you claimed have returned to Iraq and suffered there did not return to Iraq and therefore could not have suffered there." He went on to say: "…one of the witness who gave evidence opposite to yours is your brother himself. Okay, and it appears quite clear to me that he was contacted inside Syria not in Iraq." The Tribunal member then said: "Now, I couldn't make a decision favourable to you with that information in front of me when I read this some weeks ago. Because you were saying one thing and all of these people were giving a picture that appeared to mount up to quite an opposite situation. Now, today you maintain that your father and brothers went back to Iraq and were ultimately punished very severely. And that they remain in trouble in Iraq until this day. These witnesses including one of those specific brothers say otherwise. I now put the discussion over to you and I want to hear what you have to say about this and whether you can reconcile these different pictures that I am receiving." The answer received was not immediately responsive, Mr Najim saying: "I am not responsible for the affair of the whole family. I've got my father, for instance." 21 Mr Najim then referred to his father's business in Bahrain, but the interpreter didn't hear the finish of his response. The Tribunal member then put to him again: "What I'm putting to you, you haven't got to it yet, so I'm going to have to press you. Just a moment. It's quite plain, the problem is quite plain and I'm sure your answer can be a little bit more to the point earlier on. You claim that your brothers and father went back to Iraq and were imprisoned. Your brother claims that this is not true. Okay, and two other witnesses back up, generally back up his picture. Now, what they appear to be saying is that you have lied about what happened to your - that you have lied about your father and brothers going back to Iraq. Now, this is such an important issue in your case. Okay, who is telling the truth? You or them?" Mr Najim responded: "I am telling the truth." The Tribunal member then asked him: "…why did three different people give a completely different picture…?" Mr Najim said he wanted to make clear to the Tribunal that at the place where the telephone inquiry was made, anybody could make a telephone call or speak to anybody they liked. He said: "This is … not a house, a telephone service." The Tribunal member asked him whether he was saying that someone posed as Abdul Karim and gave the information about his family. Mr Najim responded: "Yes." Asked why a person would do that he said: "This place - that being in context a reference to the place at which the telephone contact was made in Syria - …is centre of conversation or telephone service, this is under the Syrian Intelligence supervision." 22 The Tribunal member put to him that the Australian Embassy had stated that it had telephoned his family home, using his family home number, and spoke to his brother: "It didn't ring any centre…." Mr Najim, however, asserted that it was not his family home but a correspondence centre. He said at home they did not have a telephone and he said that whoever had responded to the Embassy had told lies. The Tribunal member put it to him again: "I have a duty to explain it to you, to make it very clear. Up to this point you're saying that the man who spoke to the Embassy made up a whole story about you that wasn't true and that he would have been using false information that you fed to your neighbours for one reason or another. Now, if it looked like that I'd be starting to question whether this was Abdul Karim at all and I'd be looking at considering your explanation. I would be further considering the possibility that this was a person impersonating Abdul Karim just as you were saying. But as the primary decision showed you, the person claiming to be Abdul Karim at the end of this telephone call on the other end of this telephone line, he gave detailed information about your family's migrations from 1967 onwards that correspond very closely and in detail with your own claims about your family's migrations from 1967. So this does not sound like a person who was repeating some bull story that you told him to disguise your family's tracks." 23 There was another exchange and then Mr Najim asked if he could have a few minutes. He said that their movements from one country to another was something that they could not just put out as a story. The Tribunal member then again put his concerns to Mr Najim, told him that he believed he was lying about the issues of his brother Abdul Karim and father, and told him that they had reached a crossroads in the hearing and he was going to have a brief adjournment to give Mr Najim an opportunity to consider whether he wanted to abandon the claims about his family returning to Iraq and being punished and to consider whether he wanted to proceed simply with the claims about what danger they faced in Syria as a result of their political activities there. An adjournment followed. 24 When the Tribunal reconvened, Mr Najim said that he was applying for refugee status. He was the one who was in danger, not his father or anybody else. The Tribunal member said: "That wasn't the question. Although now you are telling me that your father and brothers are not in danger which seems to support my inference, seems to support the composite picture built up by the witnesses testifying differently from the way you originally claimed." There were further exchanges with the adviser, the Tribunal saying to the adviser: "Now, his whole primary application turns on the danger that his father and brothers continue to face and have suffered." In the end he was asked: "Just say: yes or no to the following question: those claims about your father and three brothers returning to Iraq, being imprisoned there and remaining there to this day, are you abandoning those claims now? Yes or no? Go ahead, continue please? Well, you've said something and it's not translated for me yet." Mr Najim responded through the interpreter: "The statement that you heard it is the truth." 25 The Tribunal member said that wasn't a direct answer to his question, so he was going to ask it again, and he put to Mr Najim his perception of things up to that point. He said he believed Mr Najim was lying to him about his father and brothers having returned to Iraq and about them having been imprisoned there. He held that perception on the basis of the information in front of him up to that point. He had provided Mr Najim with time to think about the position and he was asking him to say yes or no, did he abandon the claims, did he now disown them, or did he want to put them behind him and say, "They're not true"? Mr Najim then said: "Yes, I withdraw what I said before about my father and my brothers." The Tribunal responded: "Well, that wipes out a whole and significant area of your claims, okay? But it still leaves us with having to deal with the claim about the newspaper, the spies, the potential for deportation and the potential for agents of Saddam Hussein to cause you trouble in Syria. And I also have to consider the question of whether or not you can be effectively protected in Syria. Okay?" Then there was further evidence about the position of Iraqis in Syria and whether new claims were being raised. The Tribunal said: "Okay. Well, I have no more questions at this point. I will consider all of those claims. I now appreciate what remains of your application when we take out the claims about your father and your brothers returning to Iraq. There are still some issues for me to deal with there. I have to deal with evidence about effective protection in Syria, I have to deal with evidence about your political involvement. I have to deal with the fact there has been some dialogue between Syria and Iraq. I have to look at what the implications will be for you and whether or not you could re‑enter Syria and reside there free from the threat of Refoulement, as we call it, free from the threat of a forced return to Iraq. Okay? So I've still got all that in front of me to consider. I propose to give you and your adviser one more week to lodge submissions with this Tribunal. For clarity, we're talking about close of business, Friday 5 May, to address these issues that I've just referred to and any other issues that you see fit to raise that you consider relevant to your application. Okay?"

Then there was more exchange between the adviser and the Tribunal and also Mr Najim and then at the end of the hearing the Tribunal said: "Thank you. The decision will come in a couple of weeks but I will give you a further week to make submissions in relation to issues raised today. Thank you."

Whether the Tribunal Complied with the Act 26 The preceding passages were the important elements of the exchanges between the Tribunal and the applicant relevant to the ground of review based upon s 424A. Having gone through those exchanges in detail, while I have some reservations about some of the language in terms of the complexity of the language used by the Tribunal and the length of some of the Tribunal's propositions which then had to be interpreted to Mr Najim. Overall however I am satisfied that Mr Najim was told clearly and on more than one occasion and at some points in quite clear and short sentences, that the critical issue going to his credibility and to the application he was making was the truth of the contention about the situation of his father and brothers allegedly imprisoned in Iraq and the contradictory information in that respect which had emerged through the inquiries associated with the original decision. 27 Notwithstanding that he may have perceived that repeated invitation to respond as hostile or harassing on the part of the Tribunal, it was in the end a fair focus upon what was a central concern which the Tribunal was striving - perhaps not always as successfully as it might - to get him to respond to. The complaint that he was asked to answer only yes or no to a question really came at the end of a much longer dialogue in which the substance of the contradictory material which really overwhelmed any credibility that his contentions might have had was put to him. 28 He was, as a matter of practical impression, persisting before the Tribunal in what was plainly quite an untenable position. Even if it were the case that there had not been substantial compliance with the requirements of s 424A of the Act in the course of the oral hearing, Mr Najim, through his adviser, was given an opportunity to make further submissions. Now it is put that the context in which that opportunity was offered, and I refer to page 27 of the transcript of the proceedings before the Tribunal, was confined to the remaining claims once the claim about the father and brothers returning to Iraq had been abandoned. The remaining claims concerned effective protection in Syria, Mr Najim's political involvements in that country and the nature of the relationship between Syria and Iraq and whether that posed a threat to him. However, also on that page as appears from the transcript, he was invited to address not only those issues but any other issues that the adviser would see fit to raise and that were considered relevant to the application. 29 In an affidavit admitted for the limited purpose of showing what Mr Najim would be able to say to the Tribunal were he given what he says he was not given before, a reasonable opportunity, Mr Najim says that the events that he claimed had happened to his father and brothers in Iraq actually happened to the father of his wife and her brothers, who are also his uncle and cousins. He had said that they happened to his father and brothers was because a smuggler told him that it would be better for him if concerns about his safety were because of things that were happening to his father and brothers in Iraq rather than to his uncle and cousins in Iraq. At the Tribunal, however, he said he was made to swear an oath on the Koran. That was a big thing for him, he could not hide anything after that, although I note that he did actually maintain the truth of the original position for some time before the Tribunal. 30 This and the other matters which he raised in the affidavit could well have been put in the supplementary submissions and I do not accept that the basis upon which he or his adviser were invited to lodge supplementary submissions excluded that possibility, even if one leaves out the reference to submissions on any other issue he might see fit to raise. For after all the explanation that he now offers through his affidavit is by way of confession and avoidance. 31 A supplementary statement was lodged by his migration consultants and covered some four typed pages plus attachments. It contended in paragraph 2 that his father would be exposed to dangers of persecution whether he were in Iraq or Syria or elsewhere. Mr Najim was, albeit in a very limited way, addressing the issue in that written submission and could, consistently with the Tribunal's invitation, have done so more fulsomely had he wished. In the end, I am not satisfied that there has been a non-compliance by the Tribunal with the requirements of s 424A of the Act. That is the only ground upon which the application is brought. The application will therefore be dismissed. 32 The application will be dismissed with costs. I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate: Dated: October 2000 Counsel for the Applicant: Mr C Colvin

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)s 424A, s

Najim v Minister for Immigration & Multicultural Affairs

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Judgment (10 paragraphs)

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