Re Tone Shfek Damouni and Feryal Gamel Antowan v the Minister of Immigration, Local Government and Ethnic Affairs [1989] FCA 181; 87 ALR 97

Re Tone Shfek Damouni and Feryal Gamel Antowan v the Minister of Immigration, Local Government and Ethnic Affairs [1989] FCA 181; 87 ALR 97 - FCA 1989 case summary — Zoe

[37]

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.

[108]

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.

[110]

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.

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Judgment (116 paragraphs)

Re Tone Shfek Damouni and Feryal Gamel Antowan v the Minister of Immigration, Local Government and Ethnic Affairs [1989] FCA 181; 87 ALR 97 (22 May 1989)

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Legislation Cited (16)

Cases Cited (4)