Hawwash, Ra'ed v Minister for Immigration & Multicultural Affairs [1998] FCA 1564

FEDERAL COURT OF AUSTRALIA MIGRATION - appeal from Refugee Review Tribunal ("RRT") decision refusing protection visa – whether RRT made legal error by failing to find that applicant was a national of Jordan before considering the applicant's status in relation to Jordan – whether applicant's fear that Australian intelligence agency may have informed Jordanian authorities of contact made with applicant well founded – whether failure to make material findings amounts to a failure to act according to substantial justice and merits of the case Migration Act 1958 (Cth), ss 420, 430(1)(c), 476(1)(a), 476(1)(e), 476(1)(g), 476(2), 476(4)(b) Migration Regulations (Cth) Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, cited Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1998) 151 ALR 505, cited

RA'ED F HAWWASH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 98 of 1998 O'CONNOR J SYDNEY

7 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 98 of 1998

BETWEEN: RA'ED F HAWWASH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: O'CONNOR j

DATE OF ORDER: 7 DECEMBER 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application be dismissed with costs. NOTE: SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 98 of 1998

BETWEEN: RA'ED F HAWWASH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: O'CONNOR j

DATE: 7 DECEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT This is an application for the review of a decision of a member of the Refugee Review Tribunal ("the Tribunal") dated 16 January 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa. On 7 May 1998 the applicant filed an amended application pursuant to orders made by Lehane J on 4 May 1998. At the hearing of this matter on 24 November 1998, the applicant filed in court another amended application. No objection to this was taken and the amendment was allowed. The grounds of this amended application are: 1. That the decision involved an error of law being an error involving an incorrect interpretation of the applicable law.

Particulars 1.1 The Tribunal failed to apply the primary facts as found to the law. 1.2 The Tribunal failed to apply the relevant law for consideration. 1.3 The Tribunal misapprehended its function by failing to apply his findings to the applicable law. 1.4 The Tribunal made a finding without evidence namely that ASIO would never contact the Jordanian authorities about the applicant because no intelligence agency sensitive to its own ability to obtain operatives in the future would contact the authorities of the potential operative's home country. 2. That the Tribunal failed to observe procedures required to be observed by the Migration Act 1958 (Cth) ("the Act"), namely, in failing to comply with s 430 of the Act according to substantial justice and the merits of the case. Particulars 2.1 The Tribunal failed to comply with s 430(1)(c) in relation to the question of whether (i) the applicant was a national of Jordan; (ii) whether the applicant was a former habitual resident of Jordan; (iii) whether the applicant has the rights and obligations which are attached to the possession of Jordanian nationality; and (iv) whether the applicant should be refused refugee status in Australia on the basis of the application of Article 33 of the Refugees Convention. LEGISLATIVE CONTEXT The relevant provisions of the Act in respect of this application are as follows: "Refugee Review Tribunal's way of operating 420. (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. ... Refugee Review Tribunal to record its decisions, etc and to notify parties 430. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: … (c) sets out the findings on any material questions of fact; … ... Application for review 476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; … (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; … (g) that there was no evidence or other material to justify the making of the decision. (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power. … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: … (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a 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, is unable or, owing to such fear, is unwilling to return to it." The applicant seeks an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law. FACTUAL BACKGROUND The applicant claims to be a national of Jordan, of Palestinian origin who holds a Grade C Jordanian passport, which is normally issued to Jordanian citizens of Palestinian origin. The applicant was born in Kuwait but cannot return there because of his Palestinian origin – that is, Kuwaiti perception that residents of Palestinian origin were supporters of Saddam Hussein's attempt to take over the country in 1989/1990. The applicant's attempts to visit his father and brother in Kuwait have been unsuccessful as the Kuwaiti authorities have refused to grant him a visa. The applicant was resident in the United States from 1990 – 1994, where he was employed in a firm associated with the airline industry. During his time in the United States the applicant became associated with a Jordanian political group known as Hizb Al Tahreer. He became sympathetic to the objectives of the group and distributed propaganda material on its behalf. After his return to Jordan in 1994 he began to attend religious meetings with a friend he had made in the United States, who was also a member of the group. Following the arrest of prominent members of the Hizb Al Tahreer in November 1994 the applicant was told to attend an interview at the General Intelligence Directorate where he was questioned about his religious activities in the United States and asked whether he continued his involvement in Jordan. The applicant claimed he was questioned for three days for a period of two to three hours each day. While he did not experience any further difficulties with the authorities, he felt it necessary to stop attending mosques and to abandon the clothing which identified him as a close adherent of the Hizb Al Tahreer. The applicant claimed he feared he would be persecuted and may be sent to jail if he returns to Jordan because of his association with the Hizb Al Tahreer. The applicant also claimed he was treated unfairly by the Jordanian Government over a financial matter related to his attendance at a course at the Royal Jordanian Flying Academy. The applicant claims that many of his problems with the authorities in Jordan are related to his Palestinian background. Following his arrival in Australia the applicant claimed he was contacted by an officer of the Australian Security Intelligence Organisation ("ASIO") who sought information on the Jordanian religious group to which he had belonged. The applicant now fears that ASIO may have informed the Jordanian authorities about their contact with him and he may suffer harm if he were to return to Jordan as a result of his contact with the Australian intelligence agency. The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 22 January 1997. The delegate's decision refusing the application was made on 30 April 1997. The applicant applied for a review of that decision by the Tribunal on 3 June 1997. The application for review was rejected by the Tribunal and his application for protection visa refused on 16 January 1998. TRIBUNAL'S DECISION The Tribunal made the following findings. · The Tribunal accepted that the applicant could not return to Kuwait because of his Palestinian background and the attitudes the Kuwaiti authorities have adopted towards Palestinian citizens since the Gulf War. There is evidence of ongoing persecution of Palestinians as a class of people in Kuwait. The Tribunal found the applicant's fear of persecution in Kuwait to be well founded and that he is a refugee in relation to that country. · The Tribunal found that while it accepted that the applicant had a subjective fear of persecution and possible imprisonment because of his previous association with the Hizb Al Tahreer, his treatment at the hands of the Jordanian authorities at the conclusion of his interrogation in 1994 make it clear that the applicant is not seen by the authorities as a high profile member or associate of the Hizb Al Tahreer. The applicant's claim that his political activities while a member of this group are known to the authorities and are viewed by them as sufficiently grave to lead to a well founded fear that he faces detention, discrimination and loss of basic rights should he return to Jordan is not consistent with his admission before the Tribunal that he was not a prominent member of the group and that his political activity was limited. The Tribunal therefore found that the applicant was not a person in whom the Jordanian authorities would be interested. · The Tribunal accepted that the applicant became involved in a financial dispute with the Jordanian Department of Finance. However the Tribunal found there was no evidence nor did the applicant endeavour to establish that the treatment he received was connected with the Hizb Al Tahreer, or his religious beliefs. · The Tribunal accepted the applicant's claims in relation to the contact he made with a representative of ASIO. The Tribunal also accepted that after this initial contact ASIO lost interest in the applicant. However the Tribunal does not accept that his subjective fear that ASIO may have informed the Jordanian authorities of the contact that had been made is well founded. The Tribunal found that no intelligence agency sensitive to its own ability to obtain access to operatives in the future would contact authorities of the potential operative's home country. The Tribunal found that it was not plausible that ASIO would ever have contacted the Jordanian authorities about him. Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention.

DECISION

At the hearing of this matter the applicant submitted, in relation to the first ground of review, that the Tribunal made a legal error by failing to find that the applicant was a national of Jordan before considering the applicant's status in relation to Jordan. Further, the Tribunal did not examine the law applicable to the making of such a finding. The respondent submitted the applicant had asserted his citizenship of Jordan at all stages of his application and its review and the decision reflects the satisfaction of the Tribunal as to this fact. It was never in issue in any proceedings. In a further written submission provided after the hearing, the applicant appears to withdraw this particular submission by stating "the applicant accepts that the Tribunal found the applicant was a national of Jordan." The second error relied on in this ground of review is that in making a finding that the Tribunal does not accept that the applicant's subjective fear that ASIO may have informed the Jordanian authorities of the contact that has been made is well founded. The Tribunal said that it came to this conclusion because it was "implausible that ASIO would do so because no intelligence agency sensitive to its own ability to obtain access to operatives in the future would contact the authorities of the potential operative's home country", and, the applicant submits, there was no evidence to support that statement. Although the applicant in submissions characterises this as an error reviewable pursuant to s 476(1)(e), as the respondent correctly points out, it is more properly characterised as a ground of review under s 476(1)(g). If review is sought under s 476(1)(g) then s 476(4)(b) would apply. The respondent submits that if this was reliance on a non-existent fact the applicant produced no evidence to support the non-existence of the fact. The statement made by the Tribunal in my view is more properly construed as an opinion held by her, leading to the assessment of the applicant's subjective fear. On either characterisation however no error of law under s 476(1)(g) is made out. The second ground of review is based on the inadequacy of the reasons for decision ie. compliance with s 430 of the Act. The applicant argues the failure to make material findings amounts to a failure to act according to "substantial justice and the merits of the case". The particulars refer to the issue of Jordanian nationality and related matters. The respondent submits correctly that there is no basis for the applicant to assert that misconception or unreasonableness is a ground for review in this matter. It is specifically excluded by s 476(2)(b). Whether the matters particularised could become a ground of review on the basis of the principle enunciated in the case of Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 and Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1998) 151 ALR 505 need not be considered here because, as stated previously, the failure to find the facts relevant to nationality is no longer relied on by the applicant. However, if they were still pressed, it would, in my view, not amount to an error of law because the Tribunal would be entitled to form the view as to a rejection of refugee status on the basis of "well-founded fear" before proceeding to consider nationality, both having to exist before a favourable decision could be made that the applicant was a person to whom Australia owed an obligation under the Convention. As the decision maker's findings on that matter are in my view not affected by legal error, and are unfavourable to the applicant, not making findings as to nationality would not amount to an error of law. None of the grounds relied on by the applicant are made out. The application is dismissed with costs. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate: Dated: 7 December 1998 Counsel for the Applicant: A Rayment

Solicitor for the Applicant: Corby Levingston, Solicitors

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 24 November 1998

Date of Judgment: 7 December 1998