Statutes - Migration Act 1958 ss.6A(1)(c) and 6A(1)(e)

Words and Phrases - "well founded fear of persecution" - "strong compassionate or humanitarian grounds".

Migration Act 1958

Migration Amendment Act (No. 2) 1980

Administrative Decisions (Judicial Review) Act 1977 s.5(1)(e), s.5(2)(g)

Goodwin-Gill - The Refugee in International Law (Clarendon 1983) p 38

Minister for Immigration and Ethnic Affairs v Haj-Ismail [1982] FCA 51; (1982) 40 ALR 341

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290

Gunaleela v Minister for Immigration and Ethnic Affairs [1987] FCA 277; (1987) 74 ALR 263

Immigration and Naturalization Service v Cardoza-Fonseca [1987] USSC 32; (1987) 94 L Ed 2d 434

INS v Stevic [1984] USSC 124; (1984) 467 US 407

R v Home Secretary, Ex parte Sivakumaran [1987] UKHL 1; (1988) 2 WLR 92

Rajudeen v Minister for Employment and Immigration (1985) 55 NR 129

Molefi v Principal Legal Adviser (1971) AC 182

Solicitors for the Applicants: Mr B.F. Stokes & Associates

Solicitors for the Respondent: Australian Government Solicitor

The decisions made by the respondent's delegate on 24 June 1988:

(a) to refuse the grant of temporary entry permits to

the applicants;

(b) to deport the applicants from Australia

be set aside and reconsidered in accordance with the following requirements:

(1) That the determination whether strong compassionate or

humanitarian grounds exist for the grant of an entry permit

should not take into account the failure to apply for

entry into Australia through proper channels. That

factor and associated Government policy may be taken into

account in deciding whether, in spite of the existence of

such grounds, the discretions to grant a temporary entry

permit and an entry permit under s.6A(1)(e) should be

exercised in favour of the applicants.

(2) That the failure to apply for a migrant entry visa

through proper channels in accordance with

Government policy be considered in the light of the

claimed financial and other difficulties in the way

of such application.

(3) That the question of whether the Damounis would be

unwelcome or exposed to discrimination on religious

grounds if returned to North Yemen be reconsidered

with a view to making a finding one way or the

other or if no finding can be made on the evidence,

a determination to that effect.

(4) That the suspicion that the first applicant had a

higher degree of involvement with the Palestine

Liberation Organisation than that to which he

admitted not be taken into account in determining

the existence of strong compassionate or

humanitarian grounds for the grant of an entry

permit.

The respondent to pay the applicants' costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Tone Shfek Damouni, his wife, Feryal Gamel Damouni and their three children, Janet, born 16 January 1978, Joseph, born 7 July 1980 and Kamelia, born 15 May 1982, arrived in Australia on 14 January 1987. They are variously described in the papers as citizens of the Yemen Arab Republic, Palestinians and stateless persons. On arrival they were granted temporary entry permits valid for one month and subject to a condition that they not undertake any employment while in this country. On 28 January Mr and Mrs Damouni lodged applications for refugee status. Just under 12 months later, on 8 January 1988, their applications were rejected. The request they had made on 29 January 1987 for further temporary entry permits for a period of three months were not processed. On 24 February 1988 they applied for resident status on the basis of strong humanitarian and compassionate grounds. On 24 June 1988 these applications were rejected, further temporary entry permits were refused and deportation orders were made in relation to both Mr and Mrs Damouni. They now seek orders for the review of the refusal of refugee status made on 8 January, the deportation orders made on 24 June 1988 and the refusal on that date to grant further temporary entry permits or to allow them to depart voluntarily from Australia.

2. The application was out of time in relation to the decision to refuse to accord refugee status, but after hearing submissions from both parties, I granted an extension under the provisions of the Administrative Decisions (Judicial Review) Act 1977 to enable those decisions to be considered.

3. The power to grant entry permits to non-citizens is conferred upon authorised officers by s.6 of the Act. Entry permits are to be in a form approved by the Minister and expressed to permit the grantee to enter or remain in Australia or both (sub-s.6(3)). They may be granted to non-citizens either upon arrival in Australia or, subject to s.6A, after arrival (sub-s.6(5)). Provision is made for temporary entry permits in sub-s.6(6) which provides:

"6(6) An entry permit that is intended to operate

as a temporary entry permit shall be expressed to

authorize the person to whom it relates to remain

in Australia for a specified period only, and such

a permit may be granted subject to conditions."

4. Section 6A was introduced into the Migration Act 1958 by the Migration Amendment Act (No. 2) 1980. The relevant provisions for present purposes are as follows:

"6A(1) An entry permit shall not be granted to a

non-citizen after his entry into Australia unless

one or more of the following conditions is

fulfilled in respect of him, that is to say-

.

.

.

(c) he is the holder of a temporary entry permit

which is in force and the Minister has

determined, by instrument in writing, that he

has the status of refugee within the meaning

of the Convention Relating to the Status of

Refugees that was done at Geneva on 28 July

1951 or of the Protocol relating to the Status

of Refugees that was done at New York on 31

January 1967;

.

.

.

(e) he is the holder of a temporary entry permit

which is in force and there are strong

compassionate or humanitarian grounds for the

grant of an entry permit to him.

.

.

.

(8) In this section, a reference to an entry

permit shall be read as a reference to an entry

permit other than a temporary entry permit."

5. Thus, a determination that a person has the status of a refugee arises under s.6A(1)(c) of the Act, while the discretion to grant an entry permit on strong compassionate or humanitarian grounds arises under sub-s.6A(1)(e).

6. As appears from the Second Reading Speech in relation to the Migration Amendment Bill (No. 2) 1980 (H of R 27/11/80 p 151), s.6A was intended to limit the categories of migrants eligible to be granted permanent residence subsequent to their arrival in Australia. It was evidently inspired by a concern that many people were entering Australia as visitors, remaining beyond their permitted time and seeking change of status, sometimes years later, on the basis that they had become so integrated into the community as to be constituent members of it. The effect of the change was said to be to preclude the grant of permanent resident status to the great majority of those who had in the past entered and remained illegally in Australia. Prior to the introduction of the section it was open to an officer of the Department of Immigration and Ethnic Affairs to grant an entry permit entitling a person to resident status whenever it was thought appropriate to do so. Following the amendment, however, entry permits would only be granted to non-citizens after entry into Australia in the special circumstances set out in the section. The power to grant an entry permit was thereby considerably limited - Minister for Immigration and Ethnic Affairs v Haj-Ismail [1982] FCA 51; (1982) 40 ALR 341, 345 (Bowen CJ. and Franki J.); Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 600 (Wilson J.); Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290, 296 (Gibbs CJ); Gunaleela v Minister for Immigration and Ethnic Affairs [1987] FCA 277; (1987) 74 ALR 263, 275-276 (F.Ct.). The impact of the amendment on persons then living in Australia was mitigated by the announcement in June 1980 of the Regularisation of Status Program under which persons who had arrived in Australia prior to 1 January 1980 were eligible for permanent residence subject to meeting health and character criteria and making application before 1 January 1981.

7. The satisfaction of the conditions imposed by para.6A(1)(c) requires that the applicant for an entry permit hold a temporary entry permit and that the minister determine that he has the status of refugee within the meaning of the 1951 Geneva Convention relating to the Status of Refugees and the 1967 New York Protocol to that Convention. The relevant parts of the definition of "refugee" in Article 1 of the 1951 Convention were originally limited in their application to persons who were refugees "As a result of events occurring before 1 January 1951". That definition was amended in the 1967 Convention by the deletion of the limitation. The term "refugee" now applies under these treaties to 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; or

who, not having a nationality and being outside the

country of his former habitual residence as a

result of such events, is unable or, owing to such

fear, is unwilling to return to it."

8. The fear of which the definition speaks is a subjective state whose proof requires an assessment of the putative refugee. The test whether the fear is "well-founded" has received recent attention in both the United States and England. The Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L.Ed. 2d. 434, considered the Convention definition of refugee which had been incorporated into s.1101(a)(42)(A) of the Immigration and Nationality Act 1952 by the Refugee Act 1980. Accepting that one of Congress' primary purposes was to bring United States law into conformity with the 1967 Protocol, the majority held that to show a "well-founded fear of persecution" an alien need not prove that it was more likely than not that he or she would be persecuted in his or her home country. The reference to fear, it was said, requires consideration of the subjective mental state of the alien and a finding on objective evidence that persecution is a reasonable possibility - see also INS v Stevic [1984] USSC 124; (1984) 467 U.S. 407. The Full Federal Court observed in Gunaleela v Minister for Immigration and Ethnic Affairs [1987] FCA 277; (1987) 74 ALR 263, 281 that the Supreme Court was "dealing with municipal legislation which drew the terms of the Convention into consideration by the makers of the decision under review". But it is clear from the judgments of the majority in Cardoza-Fonseca that the court construed the legislation conformably with the meaning it attributed to the Treaty definition. More recently in R v Home Secretary Ex parte, Sivakumaran [1987] UKHL 1; (1988) 2 WLR 92, the House of Lords considered that definition as incorporated into the provisions of the Statement of Changes in Immigration Rules (1983) (HC 169) made under s.3(2) of the Immigration Act 1971. Their Lordships rejected the purely subjective test, adopted by the Court of Appeal, for the existence of a "well-founded fear". They held that for a fear of persecution to be well-founded, there has to be demonstrated "a reasonable degree of likelihood" that the claimant to refugee status will be persecuted for a Convention reason if returned to his own country - at p 98 (per Lord Keith, Lords Bridge, Griffiths and Goff agreeing). Lord Templeman at p 100 held that the Home Secretary had not erred in requiring to be satisfied of a "real and substantial danger". Lord Goff, while agreeing with Lord Keith, accepted that the requirement for a "real and substantial risk of persecution for a Convention reason" was consistent with his approach.

9. Gunaleela v Minister for Immigration and Ethnic Affairs (supra) was decided in the Full Court some three and a half months before the House of Lords gave judgment. In that case the Convention definition of "refugee" had no direct legal operation on the decision-making process for the claimants for refugee status had been detained upon arrival at Sydney Airport. They had not been permitted to "enter" Australia within the meaning of s.6A(1)(c) and no statutory "determination" of their position was therefore possible. Nevertheless their Honours accepted the description of the subjective and objective components of a well-founded fear advanced by the Canadian Federal Court of Appeal in Rajudeen v Minister for Employment and Immigration (1985) 55 NR 129 at 134 when it said:

"The subjective component relates to the existence

of the fear of persecution in the mind of the

refugee. The objective component requires that the

refugee's fear be evaluated objectively to

determine if there is a valid basis for that fear."

10. In my respectful opinion, there is nothing in that acceptance which is inconsistent with the approach taken by both the U.S. Supreme Court and the House of Lords in the cases cited.

11. As to the verb "persecute" its ordinary English meaning is to "Pursue with enmity and ill-treatment; subject to penalties on grounds of religious or political beliefs; harass, worry; ..." (Concise Oxford English Dictionary). The range of conduct attracting the description "ill-treatment" or constituting the imposition of "penalties" is wide. In many cases the question whether such conduct amounts to persecution will be a question of degree. The core meaning of the term however "readily includes the threat of deprivation of life or physical freedom" - Goodwin-Gill - The Refugee in International Law (Clarendon 1983) p 38. It may also extend to "measures taken upon the basis of one or more of the stated grounds which, threaten ... torture or cruel, inhuman, or degrading treatment; subjection to slavery or servitude; non-recognition as a person (particularly where the consequences of such non-recognition impinge directly on an individual's life, liberty, livelihood, security or integrity); and oppression, discrimination, or harassment of a person in his or her private, home or family life" - Goodwin-Gill ibid. p 40. It would be difficult, if not impossible to essay any exhaustive definition of the term. The determination whether the treatment which is or may be meted out to a person amounts to persecution will involve normative judgments going beyond mere fact finding. These normative elements are, I think, recognised in a passage from the judgment of the Privy Council in Molefi v Principal Legal Adviser (1971) AC 182, 196, cited with evident approval by the Full Federal Court in Gunaleela v Minister for Immigration and Ethnic Affairs (supra) at 281:

"Their Lordships consider that the words in the

definition of the term "refugee" must be applied

with common sense while remembering that one event

may often lead to another which in turn may lead to

another or others. The words do not call for

legalistic or philosophical examination. A mean

can be found between too much stiffness of

interpretation and too much easiness of

application. When the facts of a situation are

ascertained and known then in a fairminded way

those facts must be surveyed and an answer given to

the straightforward question which is posed. If

after a fair-minded approach an answer is readily

and clearly given it may not be one that requires

or permits of detailed elaboration."

12. The language of para. 6A(1)(c) may seem to lend support to the view that the determination stands outside the statutory framework as an event whose occurrence is one of the alternative conditions for the exercise of the power under s.6 to grant an entry permit. The High Court in Minister for Immigration and Ethnic Affairs v Mayer (supra) heard, and by majority, rejected such a contention advanced in support of the submission that the determination was not a decision "under an enactment" for the purpose of review under the Administrative Decisions (Judicial Review) Act. Mason, Deane and Dawson JJ. held that the preferable construction of s.6A(1)(c) is that it impliedly confers upon the Minister the function of determining, for the purposes of the paragraph, whether a particular applicant for an entry permit "has the status of refugee" within the meaning of the Convention or Protocol. That is not to say that a like determination may not be made outside the framework of the Migration Act and, as already observed, such a situation arose in Gunaleela v Minister for Immigration and Ethnic Affairs (supra).

13. Paragraph 6A(1)(e) establishes as an alternative condition upon the power to grant an entry permit, the requirements that the applicant be the holder of a temporary entry permit and that there are "strong compassionate or humanitarian grounds" for the grant of an entry permit to him. The term "strong compassionate or humanitarian grounds" does not appear to have been the subject of any reported judicial consideration. The ordinary English meanings of the word "compassion" are "1. suffering together with another; fellow feeling, sympathy. 2. Pity that inclines one to spare or succour" (Shorter Oxford English Dictionary) and the adjective "compassionate" takes its meaning accordingly as "1. Affected with or expressing compassion; pitiful, sympathetic. 2. Fitted to excite compassion; pitiable piteous". The juxtaposition of "compassionate" and "grounds" does not sit particularly comfortably. Nor, for that matter, does the reference to "humanitarian grounds", the ordinary meaning of the adjective relating as it does to attitudes or views which support the advocacy in practice of human action in the promotion of human welfare.

14. The class of cases in which persons seek the right to enter Australia and which excite compassionate or humanitarian responses is wide. There is little to be gained by trying to draw out distinctions between "compassionate" grounds on the one hand and "humanitarian" grounds on the other. The term is a collocation which ultimately invites a normative judgment. Common to many if not all the circumstances it addresses, is the element of hardship - actual or prospective - in its various manifestations including physical, emotional and economic harm. The word "strong" suggests that not all hardship will give rise to the compassionate or humanitarian grounds which may enliven the discretion to grant an entry permit. It demands a judgment that the relevant hardship be substantial. It may be actual, to be alleviated by the grant of an entry permit or prospective in the event that such grant is withheld. There is no requirement that if hardship be the issue, it must be suffered by the applicant for the permit. The breadth of the term "strong compassionate or humanitarian grounds" necessarily extends to a consideration of the impact on other parties of a refusal to grant a permit. The consequences of a decision for the family and other persons whose fortunes are closely linked to those of the applicant lie within its purview. And the fact that many other persons may be in a like predicament to that which faces or threatens the applicant, is not, in my opinion, sufficient to take the case out of the class of those eligible for consideration under the paragraph. The word "strong" does not impose a requirement that the grounds must be special or peculiar to the applicant, although there may be circumstances where that is a relevant consideration.

15. The materials before the Ministerial delegate in relation to Mr Damouni's application for refugee status comprised the application form, supporting letters from himself and from Mr Graham Burkett, MLA, a record of interview with Mr H. Mason, a migration officer with the Department of Immigration and Ethnic Affairs, a telex dated 9 October 1987 from the Australian Embassy in Nicosia and minutes of a meeting of the Determination of Refugee Status ("DORS") committee.

16. These materials disclosed that Mr Damouni was born in Beirut on 30 September 1953. He described his citizenship as Palestinian and his religion as Catholic. At the time of his application, he and his family were living with his sister and brother-in-law, Joseph Damouni, in the Perth suburb of Doubleview. He held a passport issued by the Yemen Arab Republic on 21 November 1982 and "due to be handed back" in November 1988.

17. He was raised in the Dbaya Refugee Camp which, he said, was provided by the Lebanese Government for Palestinian refugees. He lived there until 1976, working in the Gulf and then returning to the camp. In 1976 civil war broke out in Lebanon and Phalangist Militia took over the camp. Damouni lived there a year in that situation. He claimed in his interview, that he did not have money to buy milk for his children and was not allowed to work or leave the camp. These claims were not consistent with his written application for refugee status which disclosed that the first child was born on 16 January 1978. It may be that the transcript of the interview, carried out with the aid of an interpreter, does not accurately reflect the events that took place, but no attack was made by the applicants on the accuracy of the transcript. On the other hand, the minister's delegate made no reference to this apparent inconsistency in the statement of reasons for the decision. Damouni claimed to have been apprehended and assaulted by Phalangist officers because he was Palestinian. On one of these two occasions, he said, they questioned him insisting that because he was a Palestinian he could identify terrorists for them. He said this sort of thing happened to all Palestinians in the camp, not just to himself. He told his assailants that he and his family were Christians, but their response was "you are still bloody Palestinian". His wife suffered no such treatment and he sustained no permanent injury from the alleged beatings.

18. Damouni decided to move to West Beirut sometime in 1977 and worked there as a painter and decorator. There was no evidence of how the difficulties previously presented by the prohibition against leaving the camp had been overcome. While he was still living and working in the Lebanon and during hostilities with Israel in mid to late 1982 , his son Joseph, then about 18 months old, was injured. Neither the detail of the incident nor the nature of the injury were explored in the interview. "Palestinians", according to Damouni, took his son to a special hospital where he stayed for some 20 days. The reference to Palestinians seems to have been a reference to the Palestine Liberation Organisation. The child's injuries must have been sustained about mid 1982 as he was born on 7 July 1980. Damouni and his family and many other Palestinians were expelled from the Lebanon and went to live in the Yemen Arab Republic. There he worked as a civilian driver for the PLO. According to his statement he worked with "Yasser Arafat's group". He used to drive people to and from an airport. At some stage, late in 1982 or early in 1983, he took his son to West Germany for medical treatment with financial assistance from the PLO.

19. Life in the Yemen was not without difficulty. His 15 year old brother-in-law, also a Christian, was abused by a Moslem youth. Two older brothers of the 15 year old later caught the Moslem boy "and hit him". This incident led to their arrest and a demonstration by Moslems at the Damounis' house. The demonstrators were dispersed by police, but a local Moslem priest called "El Chick" told the Damounis and other members of the Christian community that they did not want Christians living in Yemen.

20. Damouni said in his interview that in 1986 "the Palestinians" wanted him and his family to go back to Lebanon so that he could fight as a soldier, though in what cause and against whom he did not say. They evidently agreed to let him stop at Cyprus on the way back. The family entered Cyprus on 10 December 1986 on a 15 day tourist visa, which was extended for a further 15 days. During that time he contacted the United Nations and attempted to apply for refugee status, but was told that such applications were not then being entertained in Cyprus as there was nowhere to send him. He did not want to return to Lebanon and decided to apply for a visa to travel to Australia. He had sufficient money to get himself and his family here and knew that his sister, who lives in Western Australia, would help him when he arrived. No other country would give him a tourist visa. He applied to the Australian Embassy in Nicosia. Four days later he was issued a visitor's visa valid for a month's stay, to 5 March 1987. The Embassy reported on his application by telex, which was before the minister's delegate. This simply noted that the Damounis had been interviewed and there being no substantial grounds for refusal, their applications were approved. Damouni freely admitted in the course of the interview that his intention in coming to Australia was to apply to become a permanent resident here. He had no other place to go. He said he would be unable to return to Yemen because that country had only issued him with a passport to depart. He was supposed to surrender the passport to the Yemen Embassy in the first country in which he arrived after leaving it. He could only re-enter Lebanon if he did so illegally. If caught in Lebanon he would be imprisoned and expelled again.

21. It appears that Mr Damouni took some steps towards an application to migrate to Australia in 1984. With the support of his sister, he applied for permanent residence, but the application in the first instance went to Jeddah in Saudi Arabia. How it had got to Jeddah does not appear from the record of interview. Being Palestinian he could not enter Jeddah, so he wrote a letter to the Embassy and asked that his papers be transferred to West Germany. On a visit to that country about 8 months after the trip there for medical treatment for his son, he contacted the Australian Embassy in Bonn. His wife and children were not with him at that time as he could not afford to bring them out of Yemen on a mere speculation that they might get visas and the Embassy was unwilling to indicate in advance of necessary medical examinations that visas would be granted. The purpose of the visit to West Germany did not appear from the materials before the delegate.

22. Since their arrival in Australia, the Damounis have been staying with his sister. Their children have been attending school here. Mr Damouni indicated that if the war in the Lebanon stopped and he could live in peace in that country he would return.

23. The application for refugee status went before the DORS Committee on 9 October 1987. The minutes record a resume setting out the salient features of the Damounis' history. Comments made by the Department of Immigration and Ethnic Affairs to the Committee were along the following lines:

1. The level of assistance that had been extended

to Mr Damouni by the PLO was incompatible

with no prior involvement with them in Lebanon

and a modest level of involvement as a driver

in Yemen.

2. The Department would not accept that he could

not return to Yemen. His passport had been

extended twice and he had had no difficulty

travelling from that country to West Germany

in 1983 and 1984.

3. The difficulties he faced on a return to

Lebanon were the difficulties facing all

Palestinians in that country.

4. He had suffered as a result of the civil war

in Lebanon, but had resettled in North Yemen.

Although there were some arguments there

between relatives and the local Moslems he had

received protection from Yemen authorities.

5. He had become disaffected with his living

conditions and also possibly a wish to

extricate himself from involvement with the

PLO "even though in the past he evidently

called upon the PLO for protection and

assistance".

6. His treatment in North Yemen and his standing

with the PLO were not persecutory in

Convention terms. He was seen as seeking

migration to Australia for personal and

economic reasons. He could return safely to

North Yemen if not to Lebanon and was not, in

the Department's view, a refugee.

24. The other members of the Committee agreed with the assessment that he was not a refugee and unanimously recommended against the grant of refugee status.

25. In the delegate's reasons for decision the factual background already referred to was set out and the definition of refugee in the Convention referred to. The delegate then made findings of fact which were substantially a repetition of the observations contained in the submission by the Department of Immigration and Ethnic Affairs to the DORS committee. He concluded that Damouni did not have a well founded fear of persecution should he be returned to either North Yemen or the Lebanon. Accordingly, it was determined that he was not a refugee within the meaning of the Convention and protocol.

26. Grounds for Review on Determination of Refugee Status

The grounds for review in this case were confusingly

applied to all decisions under challenge. In summary, however, they were:

1. There was no evidence or other material to

justify the decision.

2. The decision was an improper exercise of

power.

3. The decision was so unreasonable that no

reasonable person could have made it and as

such was an improper exercise of power.

27. Particulars of each of the grounds were set out in the amended application.

28. The grounds for review as argued first impugned the refusal to make a determination of refugee status. This is characterised in the amended application as the refusal of an unconditional entry permit. And the basis upon which it is attacked is as set out in Ground A:

"...there was no evidence or other material to

justify the refusal of an entry permit under the

grounds in Sec. 6A(1)(c) and (e)... Migration Act

contrary to Sec. 5(1)(h) and (3)(b) of the

AD(JR) Act."

29. As stated and particularised in the application this ground was the evident product of a desire to secure review on the merits under the guise of judicial review. In the particulars relating to it, it was said that:

"The respondent erred in fact in finding that:-

(i) the applicants had not crossed the PLO and

could return to Lebanon or Yemen;

(ii) the applicants were citizens of the Arab

Republic of Yemen (North Yemen) were not

stateless refugees and had rights of residency

in Yemen where they would be treated virtually

as nationals; and

(iii) the first applicant was a senior official in

the PLO"

30. By this ground the applicant invokes s.5(1)(h) of the ADJR Act which specifies as a ground of review:

"that there was no evidence or other material to

justify the making of the decision;"

"5(3) The ground specified in paragraph (1)(h)

shall not be taken to be made out unless -

(a) the person who made the decision was required

by law to reach that decision only if a

particular matter was established, and there

was no evidence or other material (including

facts of which he was entitled to take notice)

from which he could reasonably be satisfied

that the matter was established; or

(b) the person who made the decision based the

decision on the existence of a particular fact

and that fact did not exist."

31. Paragraph (3)(a) is obviously not applicable and is not relied upon by the applicants in this case. Rather, it seems to be their contention that the decision to refuse a determination of refugee status was based upon these findings of fact, which facts did not in truth exist.

32. The threshold question in respect of the first ground as particularised is whether or not the findings of facts alleged were made. As to the first, there is no finding in the delegate's reasons that Damouni "had not crossed the PLO. The finding that he could return to Yemen was supported by the undisputed fact that his passport was extended twice by Yemen authorities and was valid until November 1988. Contrary to the allegation in the particulars, the delegate did not make an unqualified finding that the Damounis could return to Lebanon. The relevant paragraphs in the statement of reasons are 11 and 15:

"11. The former delegate noted that the Applicant's

return to Lebanon would be subject to the renewal

of his Lebanese travel document, but considered

that, otherwise, he would not be subject to

difficulties over and above those faced by the

generality of Palestinians in Lebanon.

.

.

.

15. The former delegate assessed that the

Applicant could return safely to North Yemen, if

not necessarily to Lebanon."

33. Although there was a finding that Mr Damouni had "de facto enjoyed the rights of a Yemeni national" this did not amount to a determination that he and his family were citizens of that country. Nor was there any explicit finding that they had "rights of residency" in Yemen. It can be taken however, that he did find they would be treated virtually as nationals. The third alleged finding, that the first applicant was a senior official in the PLO was simply never made. The relevant determination was at para.8 of the reasons namely that "the applicant's profile with the PLO was somewhat higher than he is prepared to admit, noting that the Palestinians retreating from Beirut offered him medical care in Yemen and that the PLO paid one half of the medical and travel expenses to have his son treated in West Germany".

34. It is not apparent on what, if any, basis the finding was made that Damouni had "de facto enjoyed the rights of a Yemen national". This is a rather loose statement. If it is meant to convey, for example, that the Government of Yemen regarded him as having a right of residence, there is no evidence of that fact. The range of legal rights of Yemen citizens was not considered nor the extent to which the relevant authorities in that country treated Damouni as entitled to those rights.

35. The finding, in my opinion, even if as seems likely, erroneous, had no bearing on the question of whether or not Damouni should have been accorded refugee status.

36. The second ground of review asserted that the decision was an improper exercise of power and in particular that the decision-maker failed to take into account various relevant considerations. Those considerations said to be relevant to the determination of refugee status and not taken into account were as follows:

1. The first applicant would be shot by the PLO

or imprisoned for life by them if returned to

Yemen.

2. The first applicant would be expelled if

returned to Lebanon.

3. The first applicant is a painter/decorator, an

occupation sought by Australia as set out on

the respondent's designated occupations list.

4. For reasons of lack of finance and the absence

of an Australian Post in Yemen, the applicants

could not apply to migrate from overseas,

namely West Germany in 1984.

5. The applicants have a close relative in

Australia who offers them housing, job and on

going maintenance.

6. The applicants will be persecuted in Yemen for

disobeying the PLO in failing to return to

Lebanon after agreeing to return to Lebanon

and will receive no protection from Yemen

authorities.

7. If not shot, and once released from prison,

the first applicant will be unable to work in

Yemen as the PLO will not employ him and he

will not be permitted to reside or work

outside the PLO camp in Yemen. They will

receive no assistance from the PLO in Yemen

and his family are unable to assist him or his

wife or children.

8. In the Yemen the applicants will be subjected

to further religious persecution.

9. On arrival in Sanaa, the applicants may be

refused entry and will have nowhere else to

go.

37. The assertion that Mr Damouni would be shot by the Palestine Liberation Organisation or imprisoned for life if returned to Yemen was not raised by him in making his application for refugee status. A letter dated 28 January 1987 from Mr and Mrs Damouni to the Regional Director made no reference to any fear of death or imprisonment. It did refer to their lack of any opportunity to live in peace because of the various disturbances in the Middle East. Reference was also made to the fact that they were unwelcome in Yemen and to their desire to settle elsewhere at the earliest opportunity. And although in their oral interview with Mr Mason on 25 March 1987, Mr Damouni said he had received ill treatment in Yemen because he was Palestinian, he expressed no fear of harm at the hands of the Palestine Liberation Organisation. That issue therefore was simply not before the delegate when the application for refugee status was refused. Nor was the assertion that he would be persecuted in Yemen for disobeying the Palestine Liberation Organisation in failing to return to the Lebanon. The issue of religious persecution in Yemen was addresed by the delegate who considered that the difficulties experienced there "resulted from arguments between relatives and the local Moslems", but noted that protection had been provided by Yemen authorities. The other factors mentioned in the second ground are not more than peripherally relevant, if relevant at all to the question of refugee status and are certainly not considerations to which the delegate was obliged to make reference.

38. By their third ground for review the applicants contend that the decision was so unreasonable that no reasonable person could have made it. This was supported by various particulars including again the assertion that the first applicant would be shot by the PLO or imprisoned for life by them if returned to the Yemen. Given that this prospect was not raised with the officers of the Department in connection with the application for refugee status, it can hardly be relied upon as a basis for characterising the rejection of the application as "unreasonable" in the sense contemplated by the Administrative Decisions (Judicial Review) Act 1977. None of the other factors mentioned in support of this claim and nothing in the papers relating to the decision on the question of refugee status support the contention that it was so unreasonable that no reasonable person could have made it. And although it was not expressly raised on the application, there is nothing in the reasons for decision on this issue to suggest that any test of refugee status was applied inconsistent with what was said in the Full Federal Court in Gunaleela and in the U.S. Supreme Court and the House of Lords in the cases mentioned earlier. This limb of the application must therefore fail.

Factual Background - Strong Compassionate and Humanitarian Grounds

39. The Damounis' application for grant of an entry permit (in effect an application for grant of resident status) was lodged on 24 February 1988 with a supporting letter from Mr Graeme Burkett MLA. Asked what circumstances constituted "strong compassionate or humanitarian grounds" for the grant of resident status, Damouni wrote:

"My sister and brother-in-law live in Australia and

have successful business in Western Australia. I

am a Palestinian born in Lebanon and I was raised

in a Dbai Camp, which was provided by the Lebanese

Government to most Palestinian refugees. I have

struggled through my life due to the conflicts of

war in the Middle East. I am a practising

Catholic unwanted in a Moslem country - I do not

have a peaceful home to which I can return."

40. Asked what hardship would result to himself or other persons included in his application if it were refused and he were required to leave Australia, Damouni said:

"If my family and I were deported from Australia to

Yemen I would immediately be placed into prison and

I could remain in prison for the remainder of my

life."

41. In an interview conducted on 26 February 1988 by Mr Ken Graffin, an officer of the Department of Immigration and Ethnic Affairs, Damouni was asked what matters he wished to be put before the decision-maker in determining whether he should be allowed to remain in Australia, given the option of voluntary departure or deported. He said:

"Return to Lebanon not possible, nothing to return

to. It is not my country I am Palestinian. There

is nowhere I can go. My wish is that I be allowed

to stay in Australia. If I was to return to Yemen

I would be imprisoned for life or shot by

Palestinians in Yemen because I left Yemen to go to

Lebanon to fight alongside of the PLO I did not

go there instead we came to Australia. We had to

leave Yemen after my wife's brother NAKLHA ANTOWAN

had a fight with another Moslem boy causing

conflict between the Christians and the Moslems.

We have three little children who are happy here in

Australia who have nearly forgotten the problems of

Yemen. Before the children came to Australia they

had not gone to school. In Yemen they teach only

the Koran. I want my children to grow up in

Australia where they have a future."

42. Mrs Damouni, when interviewed, did not wish to add anything to what her husband had had to say.

43. The Minister's delegate, Mr David Jolly, the Regional Director of the Department of Immigration, Local Government and Ethnic Affairs in Western Australia, in a statement of reasons provided pursuant to s.13 of the Administrative Decisions (Judicial Review) Act set out the background history of the Damouni family and made express reference to the grounds relied upon by Damouni in his application of 24 February 1988 and to the content of the interview conducted on 26 February 1988. Reference was also made to the interview with Mrs Damouni.

44. In his reasons for decision the delegate noted that the family were prohibited non-citizens under sub-s.7(3) of the Migration Act 1958 in that their temporary entry permits had expired and no further entry permit applicable to them had come into force. He also referred to the Australian Government's policy on illegal immigrants tabled in Parliament by the then Minister on 17 October 1985. In particular he referred to that part of the Policy which said:

""Australia has a planned migration program with

selection processes carefully designed to balance

the numbers that can be settled in various

categories. Management of the program relies

heavily on issuing visas and entry permits in good

faith to bona fide applicants. Conditions of entry

are specified at the time of visa issue and are

reaffirmed at the point of entry. No-one can

fairly claim to misunderstand their obligations.

'Overstayed visitors', whatever their reasons, are

unlawfully in Australia.There status of illegal

immigrants or 'prohibited non-citizens' is of their

own making and it must be recognised as such." "

He also went on to quote a further passage from the policy:

""It is not open to people from anywhere in the

world to decide of their own volition that they

will live permanently in Australia. If, in

attempting to do so, they break Australia's laws,

they must expect to face the consequences,

including prosecution and removal from Australia by

deportation if necessary."

45. Mr Jolly then considered the question of further temporary stay in Australia for the Damouni family, but taking into account their "illegal status, their stated intentions of remaining permanently and their failure to abide by the conditions of the entry permit which was granted on arrival" he decided that a grant of a further temporary entry permit in the context of further temporary stay would not be appropriate. Noting that the family did not fulfil any of the conditions of s.6A(1) of the Migration Act for the grant of resident status, he observed that it remained open to him if he considered that strong compassionate or humanitarian grounds existed, to grant a further temporary entry permit to enable the family to meet the legal conditions for the grant of resident status under sub-s.6A(1)(e).

46. In that connection, he referred to the following matters:

1. The Damounis' fear of returning to the Yemen

where it was said Mr Damouni faced death or

life imprisonment due to political or

religious beliefs.

2. Their inability to return to the Lebanon or

any other Middle Eastern country.

3. Their desire to live peacefully away from the

conflicts and wars in the Middle East.

4. That the family were practising Catholics and

were not welcome in a Moslem country.

5. There were three young children in the family

who had been attending school in Australia.

The parents has wanted these children to be

raised in a peaceful country.

6. The Damounis would be assured of family

support and employment and accommodation as Mr

Damouni's sister lives in Western Australia.

On the debit side, Mr Jolly listed the following factors:

1. The indications were that the family entered

Australia on visitor visas with the intention

of residing permanently. Mr Damouni and his

wife had applied for refugee status 2 weeks

after arriving in Australia as visitors.

2. Mr Damouni had applied for migrant visas in

1975 and again in 1984 but did not attend for

interview on either occasion. His wife had

also mentioned the 1984 migration application.

Having applied for migrant visas and

extensions of their temporary entry permits

they would not, as they claim, have been

unaware of visitor conditions.

3. Mr Damouni's mother, three brothers and three

sisters were resident overseas. He had one

sister in Australia.

4. Mrs Damouni's mother, six brothers and two

sisters were resident overseas. She had no

relatives in Australia.

He also said that he noted the comment by the DORS Committee on the assistance which had been given to the Damounis by the Palestine Liberation Organisation in North Yemen and West Germany and the protection given to them by the Yemen Arab Republic. Although rather indirectly stated, this must, I think, be taken as a reference to, and in all probability acceptance of, the view expressed by the Department to the DORS Committee that the level of assistance extended by the PLO was incompatible with Damouni's claimed modest level of involvement as a driver for the PLO in Yemen. The comment was little more than the expression of a suspicion and it is difficult to see what legitimate role suspicion could play in the decision to be made in this case. Mr Jolly also evidently rejected the contention that the family could not safely return to Yemen. In support of that rejection he noted that neither his Department nor the other Government Departments represented on the DORS Committee had accepted the contention that the family could not safely return to that country. The reality of that acceptance is indicated by the minutes of the DORS Committee. The substantial input came from the Department of Immigration, Local Government and Ethnic Affairs. There is no basis for any inference that the acceptance of its views by the Attorney-General's Department and the Department of the Prime Minister and the Cabinet added any weight to them, although the agreement of the Department of Foreign Affairs and Trade is of significance. The conclusion reached by the DORS Committee was reached in the context of deciding whether or not Mr Damouni had the status of a refugee.

47. Acknowledging that the family had suffered as a result of the civil war in Lebanon, Mr Jolly was of the view that they had effectively resettled in North Yemen over four years before coming to Australia. He accepted that they would prefer a Christian environment and education for the young children away from the unsettled Middle East. He personally checked, he said, with the Middle East Desk Officer in the Department of Foreign Affairs and Trade in Canberra and was told:

"...that, although still conservative, North Yemen

is, by Arab standards, secular and increasingly

modern with a growing expatriate community which

has access to education. Emphasis was on

modernisation and the raising of education

standards. There had been no evidence, either from

post reports or from the visit recently undertaken

by the Australian Foreign Minister of the

discrimination claimed by Mr Damone."

"17. Having examined all the material before me,

and in light of the above, I concluded that Mr

Damone and his family had not advanced claims

sufficient to invoke the compassionate and

humanitarian criteria as they apply to sub-section

6A(1)(e) of the Act. I therefore decided to refuse

the grant of resident status."

48. The listing of factors "in favour" of the Damounis necessarily involved factual findings in their favour on those points and the attribution of some weight to the facts so found. If that were not so, the "factors" could not have been treated as being "in favour" of the application for resident status. Mr Jolly must, therefore, be taken to have found as fact at least the following, namely that:

1. The Damounis held a genuine fear that Mr

Damouni would be exposed to death or life

imprisonment if returned to the Yemen.

2. They would be unable to return to Lebanon or

any other country in the Middle East.

3. They were practising Catholics who would not

be welcome in a Moslem country.

4. They would be assured of family support,

accommodation and employment in Australia

because of Mr Damouni's sister who is a

resident here.

5. They had three young children attending school

in Australia and wanted them to be raised in a

peaceful country.

49. Against these findings in favour of the existence of strong compassionate and humanitarian grounds he took into account the failure to apply for entry into Australia through proper channels and the fact that both applicants had family overseas. As to the first matter, that is at best peripherally relevant to the existence of such grounds. It is rather a consideration which may arise where such grounds are found to exist. For even when they are found to exist their existence merely satisfies one of the conditions which under s.6A(1)(e) may enliven the discretion to grant an entry permit. The exercise of the preliminary discretion to grant a temporary entry permit is the other enlivening condition under that paragraph. It is upon the exercise of either or both of these discretions that the government policy in relation to persons failing to use proper channels which was recited by Mr Jolly comes into play. Compliance with it is not logically part of the preliminary assessment whether strong compassionate or humanitarian grounds exist. This is no mere matter of form, for where such grounds are found to exist, the intention of Parliament as indicated by the provisions of s.6A(1)(e) would seem to lie in the direction of sympathetic treatment of such persons.

50. The location of other family members was relevant to the question being addressed. In the case of Mr Damouni this was not disclosed on the papers before the delegate apart from a reference in the application for resident status to a sister living in Beirut and to the fact that his mother and six siblings lived overseas. Mrs Damouni's mother and two of her brothers live in Denmark, while four other brothers and a married sister live in Lebanon. Another sister lives in Qatar. The presence of relatives in Lebanon appears immaterial, as Mr Jolly had accepted that the Damounis could not return to that country.

51. The decision to refuse the grant of a temporary entry permit and the related decision to deport the applicants were attacked upon two grounds, first, as an improper exercise of power for failure to take into account relevant considerations and secondly as unreasonable within the meaning of s.5(1)(e) and s.5(2)(g) of the Administrative Decisions (Judicial Review) Act.

52. The first of the considerations said not to have been taken into account was that Mr Damouni would be shot by the PLO or imprisoned for life if returned to the Yemen. As to that, Mr Jolly's findings were, at least by implication, that the family could return safely to Yemen. On the other hand he also found that they had a genuine fear of the consequences if they did so. The evidence before him did not demand a positive finding that Damouni would be at risk of being shot or imprisoned and he cannot be criticised for not having accepted that assertion.

53. A further factor said to be relevant to the adverse finding in relation to the applicants' failure to apply for resident status through proper channels from outside Australia, was the absence of an Australian Consul or Embassy in Yemen and the financial constraints on application from any other country. In this regard it will be remembered that in his record of interview with Mr Mason in connection with his application for refugee status, Damouni gave an account of attempts to apply for resident status with sponsorship from his sister in Western Australia. Initially this application was routed through Jeddah but as he could not visit that centre he asked that the papers be transferred to the Australian Embassy in Bonn in West Germany. When he attended at that Embassy to pursue his application he was told it would be necessary to have his wife and children present before visas could be granted or the grant of visas assured. Mr Jolly referred to this statement in his reasons for decision but simply asserted that Damouni had previously applied for migrant visas without attending for interview. A similar observation was made concerning an application in 1975. No consideration appears to have been given in this context to Damouni's account of his difficulties. This is evident from the lack of any specific reference to that account. It was briefly mentioned in a resume prepared for the DORS Committee which was among the documents referred to in Mr Jolly's statement of reasons. That resume said only that it appeared Damouni had attempted to migrate to Australia but decided not to proceed with his migration interview when told by the Australian Embassy in Bonn that approval could not be guaranteed in advance. In my opinion Mr Damouni's account of the difficulties he experienced in seeking a migrant visa was a relevant factor which the delegate was bound to consider and deal with if he were to take into account, adversely to the applicants, their failure to apply for permanent entry from outside Australia.

54. There is no basis for the assertion made on behalf of the applicants that Mr Jolly did not take into account the family support available to them in Western Australia. That was a matter expressly mentioned in his reasons for decision as a factor in their favour.

55. It was further contended that he had failed to take into account that the applicants would be persecuted in the Yemen for disobeying the Palestine Liberation Organisation and would receive no protection for Yemen authorities. This point is really a variation of the allegation that Mr Damouni would, for those same reasons, be shot or imprisoned if returned to Yemen. As I have already said, Mr Jolly had implicitly rejected the assertion that the family could not return safely to Yemen. Generally, however, on the question of conditions in that country his enquiries were superficial comprising a telephone call to the Department of Foreign Affairs and Trade and a handwritten file note of the response, which has already been set out. The observation that North Yemen is "by Arab standards secular and increasingly modern" for example, contrasts with the Amnesty International Report for 1988 which claims that Islamic judicial punishments constituting torture or ill-treatment were reported during that year in which 13 people were sentenced to limb amputation for theft and one to a flogging for drinking wine. In the end however, while the superficiality of the enquiry may raise doubts about the validity of the conclusions concerning the Damounis likely treatment in Yemen, it is not part of the role entrusted to this Court to investigate the factual merits of individual cases. Its jurisdiction does not extend to substituting its own opinion on such matters for that of the decision-maker. The question of religious discrimination was oddly dealt with as the reasons on one hand appear to embody a finding that as practising Catholics the family were "not welcome in a Moslem country" and on the other an acceptance that there was no evidence of religious discrimination. The findings on this issue are of importance to the existence or otherwise of strong compassionate or humanitarian grounds for the grant of an entry permit. The applicants lived in Yemen, not as a result of their own choice, but because of their expulsion from Lebanon. The apparently contradictory findings appearing on the face of the reasons suggest that the matter was not properly addressed by the decision-maker.

56. It was said to be a relevant factor overlooked by Mr Jolly that the applicants had been told that there was no need for the extension or renewal of their temporary entry permits pending consideration by the DORS Committee of their application for refugee status. This may reflect an actual policy or practice applied in such cases, but there was no evidence on the point one way or the other before the delegate.

57. As to the economic impact of the decision on the Damounis, it appeared that they had cash assets totalling $300 at the time of their application in February and were otherwise being supported by Mr Damouni's sister and brother-in-law. It is not difficult to infer that the family might well be exposed to significant economic hardship on their return to Yemen. The matter is not dealt with in the reasons for decision and in my opinion is one of relevance to the existence of strong compassionate or humanitarian grounds. It should have been taken into account by the first respondent. If, however, he were to conclude that the risk of economic hardship arose because of their decision to enter Australia in the way they did, then that factor may be discounted accordingly at least so far as the position of the parents is concerned.

58. The other "relevant factors" essentially repeat those already mentioned or raise no questions of substance. As to the allegation of unreasonableness, while being satisfied that some relevant factors which should have been taken into account were not, I am not satisfied that the decisions made were so unreasonable that no reasonable person could have taken them.

59. In the event, the decision not to grant temporary entry permits and to deport the applicants will be set aside for reconsideration having regard to the following requirements:

1. That the determination whether strong compassionate

or humanitarian grounds exist for the grant of an

entry permit should not take into account the

failure to apply for entry into Australia through

proper channels. That factor and associated

Government policy may be taken into account in

deciding whether, in spite of the existence of such

grounds, the discretions to grant a temporary entry

permit and an entry permit under s.6A(1)(e) should

be exercised in favour of the applicants.

2. That the failure to apply for a migrant entry visa

through proper channels in accordance with

Government policy be considered in the light of the

claimed financial and other difficulties in the way

of such application.

3. That the question of whether the Damounis would be

unwelcome or exposed to discrimination on religious

grounds if returned to North Yemen be reconsidered

with a view to making a finding one way or the

other or if no finding can be made on the evidence,

a determination to that effect.

4. That the suspicion that the first applicant had a

higher degree of involvement with the Palestine

Liberation Organisation than that to which he

admitted not be taken into account in determining

the existence of strong compassionate or

humanitarian grounds for the grant of an entry

permit.

5. Consideration be given to the economic hardship

which may be suffered by the Damouni family in the

event of their return to North Yemen as a factor

relevant to the existence of strong compassionate

or humanitarian grounds for the grant of an entry

permit.

60. In reconsidering the decisions in question the respondent or his delegate will be free to consider any other evidence or make such other enquiries as may be relevant to the issues for determination in this case.