WAFI v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellant, who says he is a national of Iraq of Kurdish ethnic origin, came to Australia on 22 August 2001 without any lawful authority. On 31 October 2001 he lodged an application for a protection visa. That application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs on 5 December 2001. The appellant sought review of that decision by the Refugee Review Tribunal ("the Tribunal"), and lodged an application with the Tribunal on 11 December. 2 On 5 March 2002 the Tribunal affirmed the delegate's decision not to grant a protection visa. On 13 March 2002 an application for review was lodged in the Federal Court and on 14 June 2002, RD Nicholson J transferred the matter to the Federal Magistrates Court where an amended application was lodged on 13 August. His Honour Raphael FM heard the application for review on 19 August 2002 and gave judgment dismissing the application on 23 August 2002. Subsequently, on 27 August 2002, the appellant filed a notice of appeal against that decision. A substituted notice was filed on or about 9 September 2002. By direction of the Chief Justice, the matter falls to be dealt with by a single judge. 3 In his initial interview, following his arrival in Australia, the notes of that interview record that the appellant said thathe was a Farsi speaking person of Kurdish origin. He informed the interviewer that he was born in Baghdad in Iraq but that he had been living in Iran before coming to Australia. He gave his birth date as 27 February 1976. In answer to a question about citizenship he said, 'I don't know - Iranian Govt believes I'm Iraqi. Iraqi Govt believes I'm Iranian.' He described his ethnic group as 'Kurdish/Falee' and said he spoke the English language. His father and mother were both said to be deceased. His mother had been born in Baghdad. There was no indication of the birthplace of his father. 4 Asked whether he had entered Iran illegally the appellant said he was in Iraq until the age of four. Asked: 'Why did you leave your country of nationality (country of residence)?' he said: 'I made enquiries amongst Iraqis to find out if I had relatives, but I did not. The family that adopted me treated me like a slave so I had no reason to stay with them any longer.' Question: 'When did you decide to leave them?' Answer: 'When I found out I had to decide for future. 2 years ago I left the family. I was sleeping in my adopted father's office.' Question: 'What happened in Tehran to make you want to leave?' Answer: 'I couldn't be independent of this family, as I held a green card - this card stopped me from getting a job- I had no nationality, no passport.' Question: 'Any other reasons for leaving Iran?' Answer: 'No.' Asked: 'Do you have any reasons for not wishing to return to your country of nationality (residence)?' his recorded answer was: 'I was told not to come back.' Question: 'By whom?' Answer: 'Iranian Govt. I signed that I'd not go back. I signed in airport.' Question: 'Any reason for not returning to Iraq?' Answer: 'In 1980 I was deported from Iraq with my family.' Question: 'Why can't go back now?'(sic) Answer: 'I don't have anybody there.' Question: 'You don't have anybody here?' Answer: 'There is a war in Iraq. At least here I can get a job. 'Have you tried Northern Iraq?' Answer: 'I don't like Iraq- whether north or south.' Question: 'Why not?' Answer: 'Because of the war & the dictatorship.' Question: 'Who is Iraq at war with?' Answer: 'US & England.' Question: 'Any other reasons?' Answer: 'No.' 5 The appellant subsequently completed, with the assistance of a migration agent, an application for a protection visa. Question 18 in that application asked him to state his citizenship at birth, which he said was Iraqi. Asked to state in question 19 his current citizenship, he said, 'Stateless.' At question 21 he was asked, 'If you are stateless, how, when and why did you lose your citizenship?' He said, 'When deported from Iraq in 1980.' He described his country of former habitual residence as Iran. In question 37 he was asked, 'I am seeking protection in Australia so that I do not have to go back to…" and he inserted the word 'Iraq'. When asked why he left that country, he referred to a statement attached to the application. 6 In the statement, which appears under the letterhead of his migration adviser, he said he was born in Baghdad, he had Iraqi citizenship and his father had Iraqi citizenship; so too did his mother. He said his descendants were Faili Kurds. (That presumably was meant to be a reference to his ancestors.) He said his ethnicity is Faili Kurd. In September 1980 he was five years old. He had not started school and did not have any siblings. He did not remember anything, however, the records in Iran show that his mother and he were deported to Iran from Iraq in 1980 and that his mother died shortly afterwards. The authorities gave him to the Ministry of Social Welfare who fostered him out to an Iranian family. He was never legally adopted or given Iranian citizenship. The authorities gave him a green card when he turned 18. The family gave him a name but his green card held his true name. 7 The appellantsaid he never went to school or worked. The family kept him at home and had him doing household chores. He learnt to read and write from a neighbour who taught him in the neighbour's home. The neighbour felt sorry for him so he volunteered to teach him. Initially the family was not happy for him to learn but the neighbour, who was a teacher, insisted and they finally agreed. He said he was about 12 or 13 years old when he began his education and the neighbour taught him for the next seven or eight years. 8 The appellant lived with his foster family until 1999. He said they were violent and were treating him very badly and had always treated him in that way. He said they burnt his hand with a cigarette and broke his nose when he was eight years old. He suffered regular beatings. In June 1999 he was beaten with a belt buckle. His foster mother had broken a television by knocking it off the stand and she and the children beat him to force him to confess to the foster father that he had broken it. He said he couldn't report them to the police because he was a green card holder and the police would not assist him. He said a green card holder does not have any rights. He feared if he went to the police he would be sent to Iraq, as Iran was sending Iraqis back to Iraq, even green card holders. Unofficially, they were also helping Iraqis and Afghans to leave the country without any problem. His neighbour suggested he could go to the Ministry for Social Welfare but he thought they would say he was an adult and that he should leave. He was afraid to leave as he had no skills for living on his own and was afraid he would be sent back to Iraq. 9 Ultimately the appellant told his foster father that he wanted to leave and that he might go to the Ministry of Social Welfare and complain. He told him that his foster mother had broken the television. His foster father offered to give him a cleaning job on the basis that he would live in the office. His foster father was an engineer. The appellant said he was told by an engineer who worked at the same company that he had no future, no identity, no documents, could not work legally and was at risk of being discovered by the authorities and deported to Iraq. This fear was always with him. It had been reported on television by the Prime Minister that Iraqis and Afghans had to be repatriated. He had seen on the television news pictures of Afghans being forced into trucks and taken to the border. 10 The engineer who had befriended the appellant offered to pay a smuggler to help him to leave the country. He found the smuggler through a newspaper, paid for a passport to be made and then for a ticket for the appellant. The appellant took his green card with him. He went to the smuggler and told him he wanted to leave. A passport was arranged for him. His green card was taken and stamped with an expiry date. The relevant officials looked at his passport, put a stamp in the passport saying he must depart Iran within 15 days, and then told him to return a day before he was to leave to receive a confidential letter. He was told to give the letter to the intelligence officials at the airport, which he did. He signed a form acknowledging that he was not permitted to return to Iran. Subsequently he flew to Malaysia and then through a people smuggler travelled from Indonesia by boat to Australia. 11 The appellantsaid in his statement in support of the application for a protection visa: 'I cannot return Iran as they will not permit you re-entry, I have signed to that effect. I have no residency rights in Iran. I cannot go to Iraq because the authorities deported me in 1980 and from what I understand I have no citizenship rights there now.' This application did not in any clear way expose claims which would support refugee status under the Convention. 12 In support of his application for review by the Tribunal, the migration advisers prepared a written submission dated 11 February 2002. In that submission reference was made to country information relating to Iraq. The forcible relocation of Kurdish people from the Kirkuk area and in the far south was mentioned. The fact that more than 500,000 Iraqi refugees were estimated to be living in Iran as of June 1999 was also referred to. It was said that Iraqi Shi'ites, both Arabs and Kurds, dominated the composition of Iraqis that arrived in Iran between 1980 and 1988. 350,000 had been expelled at the time of the Iraq-Iran war because of their suspected Iranian origin. A decision had been made by the Iranian Parliament in November 1999 to expel hundreds of thousands of foreign refugees working illegally in the country in order to ease the country's severe unemployment. The submission said that from the information presented it was clear that, under its Arabization program, Iran had been deporting Iraqi Kurds since 1980. The appellant's claims were said to be very possible. He had a green card, a copy of which had been given to the case officer. Green cards are particular to refugees. A national of Iran would not possess a green card. 13 Under the heading 'Refoulement to Iraq' reference was made to information which, it was said, highlighted the risk of refouling the appellant to Iraq. This was the first time really in which there was a focus on anything that might be said to be a Convention claim. Country information was again mentioned. It was said that there is no sense in which Iraq could be said to be operating under the rule of law. A person absent from the country without explanation would, without any doubt, be suspected of sympathy if not activity with the opposition. It was noted that it has been a capital offence to be a member of any party other than the Ba'ath Party for 15 years. 14 A letter from Amnesty International of 28 May 1997 was cited, which stated that punishments imposed for offences violating Iraqi laws relating to travel are severe and disproportionate to the crime. With regard to asylum seekers, it is Amnesty International's opinion that those who are known to have sought asylum abroad could be at risk of serious human rights violations upon their return. The risks facing returned asylum seekers in Iraq were mentioned. A Department of Foreign Affairs and Trade cable of October 1997 was quoted: 'A story common to many Iraqi refugees- that through the very act of applying for refugee status or citizenship of another country, the Iraqi regime regards them as political traitors and they face the death penalty on return. It is a fact that the penalty for treason is death… it is generally agreed that monitoring of individuals and communities does take place, perhaps even via the refugee assessment agencies in Amman. It is our understanding that monitoring is undertaken in Australia.' By way of conclusion to the submission it was said: 'Our client's individual claims and the submitted country information supports the contention that he holds a well-founded fear of persecution.' The decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 was quoted. Finally it was said: 'It is therefore submitted that our client being a National of Iraq and not having the right of habitual residency or nationality in any other country deserves the protection of Australia.' 15 One could extract from the appellant's submission to the Tribunal a contention of entitlement to a protection visa on the basis that the appellant was an Iraqi national who, if returned to Iraq, would face persecution either as an Iraqi Kurd, or as a deportee from Iran, or as a failed asylum seeker who would have imputed to him political opinions adverse to those of the government of Iraq. 16 When the Tribunal came to consider the matter in its reasons, it began by asserting that the appellant claimed to be a citizen of Iraq. That was a misstatement of what the appellant claimed. The appellant claimed at most to have been a citizen of Iraq but to have lost his citizenship rights upon deportation to Iran. He claimed to be neither a citizen of Iraq nor a citizen of Iran, but rather a national of Iraq who had been deported to Iran. 17 In referring to his claims and evidence the Tribunal said that the appellant claimed to be an Iraqi Kurd born in Baghdad but expelled from his homeland with his mother in 1980 when he was five years old. It referred to his account of his travel to Iran where his mother had died, his rearing in a foster family, and the events that had happened in the course of his upbringing with that family leading ultimately to his decision to leave Iran and to come to Australia with the help of the engineer who worked in his foster father's office. The Tribunal noted that after the appellant had arrived in Australia handwritten Farsi notes were found in his possession. These were the notes that were referred to earlier in the written submission. In these notes it was stated that he was a 27-year-old Iranian citizen with a degree in engineering who had worked at his profession in Iran. They also stated that he was born in Tehran and that an Iranian birth certificate had been issued to him. The notes went on to say that he left Iran because of his involvement in a student uprising at the university he was attending in 1998 and 1999 and that he wanted to convert to Christianity. The notes said that he had an uncle who was a fanatical Muslim who had found out about this and beaten him and cut him with a knife and it was because of this he decided to leave Iran. When the appellant was asked about these notes by the delegate, hesaid that they belonged to somebody else who had been on the boat from Indonesia with him. 18 The delegate did not believe that the papers belonged to somebody else. The appellant had continued to insist that the notes did not belong to him but after consulting with his adviser told the delegate the notes were his. The explanation he then gave for them was that the smuggler who had arranged his travel from Iran had given him the notes a month or two before he left Iran and advised him to use the claims they contained in support of his application for a protection visa in Australia. However, after arriving in Australia he had decided not to use the story made up by the smuggler because he feared he would not be believed if he told a lie. The delegate had suggested that he decided not to use the story given to him by the smuggler after arriving in Australia because he had been told he was unlikely to succeed if he used that story. The appellant said he had travelled to Australia with a number of Iraqi/Kurds and they had suggested he tell the truth. 19 In the course of discussing the appellant's claims and evidence the Tribunal member said: 'At the hearing I advised the applicant that I also had some difficulty accepting that he was an Iraqi Kurd who had been raised by an Iranian foster family. I advised him that while I had no difficulty accepting that the smuggler who had brought him to Australia would have helped him to concoct false claims in support of his protection visa application, I did not believe that the smuggler would have suggested he claim to be an Iranian and to fear persecution in Iran if he were an Iraqi Kurd with real fears of persecution in Iraq. The applicant said that the smuggler had told him not to say he was an Iraqi Kurd because if he did he would be sent to the north of Iraq which is under Kurdish control.' The Tribunal said the appellant maintained, notwithstanding the Tribunal's difficulty in accepting them, that his claims about his life in Iran were true and that perhaps the fact that he was an Iraqi citizen meant that his situation was not monitored. In the 'Findings and Reasons' section of its reasons for decision the Tribunal said it was not satisfied that the appellant was an Iraqi citizen of Kurdish background. As I indicated before, that was a false issue in the sense that the appellant was not claiming to be an Iraqi citizen. But in the view I have taken it is not fatal to the Tribunal's reasons for decision. The Tribunal member then went on to say that while she might perhaps have been prepared to give the appellant the benefit of the doubt on some of the matters raised if the bulk of his evidence had been credible, that was not the case. 20 The Tribunal member found the appellant's evidence to be generally unconvincing and implausible and reached the conclusion that his claims were not true and were concocted in order to obtain a protection visa. The appellant's claim that he was an Iraqi citizen was at odds with the information contained in the handwritten notes found in his possession after he arrived in Australia, which state that he is an Iranian citizen. I interpolate that the reference to citizenship in the way that it is used by the Tribunal member in this case plainly refers to his nationality of origin. It is not to be regarded as a legal conclusion about his current status. The Tribunal said that the appellant had initially denied that the notes were his and he claimed they contained false information. The Tribunal however did not accept that the smuggler who assisted the appellant to leave Iran would have concocted the claims contained in the notes if he were an Iraqi Kurd with genuine claims against Iraq. Again I interpolate at this point that the Tribunal was plainly seized of the fact that the appellant was raising claims of a fear of persecution by reason of his status as an Iraqi Kurd. That appears both from the passage I have just quoted and from the reference earlier to the exchange between the Tribunal member and the appellant in which the Tribunal member was plainly referring to claims he made when it spoke of his claims to be an Iraqi Kurd with real fears of persecution in Iraq. The Tribunal then said that it found the claim that the appellant had made about being fostered by an Iranian family which mistreated him and used him as a servant farfetched and unbelievable. It was not plausible that the family would have agreed to care for him from the age of four because they wanted a servant. 21 The Tribunal also referred to rules governing adoptions in Iran and decisions made in the best interests of the child. It referred to decisions made by the Iranian welfare organisation and periodic checks to ensure an adopted child's physical and mental wellbeing: 'It is not plausible that the applicant was raised as the child of the family which fostered him until the age of 18, yet never sent to school.' (sic) The Tribunal observed that primary schooling is compulsory in Iran and it did not believe that the family would have been able to keep him out of school particularly if their neighbour was a teacher who was sympathetic to the plight of the appellant: 'It is not plausible that this teacher would educate the applicant himself at home rather than ensure that he was sent to school as required by Iranian law.' In its summary of the overall position the Tribunal said: 'After considering all of the evidence, I am not satisfied that the applicant is an Iraqi Kurd who was expelled from Iraq in 1980 and raised by an Iranian family from the age of 4 or 5. In reaching this conclusion I have noted the photocopy of a green card which apparently bears the name [WAFI] which was recently forwarded to the Tribunal, but I believe that this document was manufactured by friends or relatives of the applicant in Iran and do not accept that it is a copy of a genuine green card issued to him by the Iranian authorities. I believe that the applicant is an Iranian citizen. There is not evidence before me which suggests that he fears persecution for a Convention reason in Iran. I am therefore not satisfied that he has a well-founded fear of persecution for a Convention reason in his country of nationality.' 22 In his reasons for decision dismissing the application for review of the Tribunal's decision, the learned magistrate characterised the Tribunal's approach to decision as considering the appellant's nationality as a 'preliminary issue'. He said the delegate also did this. It is true that the delegate stated that because of the finding he did not have to deal with any other claim and the Tribunal did not, but that does not, to my mind, indicate the type of close-minded approach which Mansfield J found in SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 and which the appellant presses upon me in this case. The learned magistrate said that the Tribunal, having come to the view that it did, that it did not believe him, it was not necessary to consider any other matters. In particular, although unsaid, was the need to consider his claims of a well-founded fear of persecution for Convention reasons. If those fears related to being refouled to Iraq, then they were not relevant if there was no likelihood of that occurring because the appellant is not an Iraqi. 23 In the amended notice of appeal from his Honour's decision, it is said: '2. The learned trial magistrate erred in law in finding that the decision under review did not disclose actual bias amounting to a lack of a good faith attempt to exercise power pursuant to s65. 3. The learned trial magistrate should have held that the decision of the Tribunal was made in excess of jurisdiction and/or it constructively failed to exercise its jurisdiction in that it did not act in good faith in making the decision and/or the decision did not involve a bona fide attempt to exercise power pursuant to s65 of the Act. 4. The Appellant seeks leave of this Honourable Court to amend his Notice of Appeal to raise a new ground of appeal in the following terms in addition to the grounds raised herein i) The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that: Particulars It misstated the Appellant's case by wrongly attributing to him the claim that he was an Iraqi citizen and failed thereby to deal with the case presented and/or an integer of the claim.' 24 The central submission put to me by Mr Gibson on behalf of the appellant, was that the Tribunal firstly identified a false issue, that is to say whether or not the appellant was a citizen of Iraq, and made a determination based upon that false issue, and that secondly, nowhere in its reasons for decision did the Tribunal actually set out and address his claims to have a well-founded fear of persecution by reason of his status as an Iraqi Kurd and potential status as a failed asylum seeker if he were to be deported from Australia having been refused a protection visa. It was suggested that this lack of failure was a significant departure from normal practice in the way that the Tribunal's reasons for decision are set out, and that it reflected a failure to address the issues which the Tribunal had to address in order to determine whether or not the appellant was entitled to the protection of Australia. 25 I note in passing that, although it was not referred to, s 430 of the Migration Act 1958 (Cth) provides that: '430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based.' That provision is ambulatory in the sense it will cover a wide variety of circumstances with which the Tribunal may have to deal and does not prescribe in any detailed way what the content of the reasons must be, beyond the requirement that they set out findings on material questions of fact and refer to the evidence or other material on which those findings were based. 26 In this case, the Tribunal on a number of occasions referred to the question of citizenship of Iraq as an element of the appellant's claims. I am satisfied that the Tribunal was not, in so doing, addressing the legal question of citizenship but rather the appellant's claim to be a national of Iraq and to have been born in that country. Its rejection of the citizenship claim, as it characterised it, was based upon its rejection of the underlying facts of the factual aspects of the appellant's story, namely that he had been born in Iraq, deported to Iran, fostered to an Iranian family, raised by them and then left Iran with the help of a people smuggler. 27 The Tribunal had rejected the contentions by the appellant that he was a national of Iraq and that he had been deported to Iran. Those contentions having been rejected, the whole foundation for the appellant's claim to have a well-founded fear of persecution as an Iraqi Kurd and as a failed Iraqi asylum seeker if returned to Iraq collapsed, and so it was unnecessary for the Tribunal to go further and to address the content of the claims made in relation to the fear of persecution if returned to Iraq. The learned magistrate characterised that as a preliminary issue. Whether one uses that term or simply says that it is a finding of fact which is sufficient to dispose of the application is a matter of terminology. But in my respectful opinion, the fact that the Tribunal did not then move on, having found as it did against the appellant's claims about his national origins, does not disclose any error. The fact that it did not in terms set out the detail of the appellant's claims for a well-founded fear of persecution on the assumption that he were an Iraqi national is not a failure to comply with the requirements of s 430. It is plain from the reasons of the Tribunal that it had in mind that he was asserting fears of persecution in Iraq as an Iraqi Kurd. That appears from the two passages to which I have already referred. 28 There is therefore no error of jurisdictional or other character on the part of the Tribunal which is exposed. The learned magistrate was right to dismiss the application and this appeal must be dismissed with costs. In so doing, I express my thanks to Mr Gibson, who has again acted on a pro bono basis and has said with his usual vigour and comprehensiveness everything that could be said about this appeal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.