FEDERAL COURT OF AUSTRALIA
Al-Zafiry v Minister for Immigration &
Multicultural Affairs [1999] FCA 443
SALEH SAFAQ SAYAH AL-ZAFIRY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 1330 OF 1998
EMMETT J
25 MARCH 1999
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
SALEH SAFAQ SAYAH AL-ZAFIRY Applicant
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AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The Application be dismissed with costs
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
Applicant
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AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
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DATE: |
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PLACE: |
EX TEMPORE REASONS FOR JUDGMENT
1 The applicant is a Bedoon from Kuwait who arrived in Australia on 7 July 1998. When he arrived he was carrying false papers. On 8 July 1998, he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs. On 11 September 1998, a delegate of the Minister for Immigration & Multicultural Affairs refused to grant a protection visa and on 15 September 1998 the applicant sought review of that decision by the Refugee Review Tribunal. The Tribunal, constituted by Ms Danoo Kelleghan, conducted a hearing and on 20 December 1998 made a decision affirming the decision not to grant a protection visa. The applicant has now brought proceedings in this Court for review of that decision under the Migration Act 1958 (“the Act”).
2 Three paragraphs of section 476(1) of the Migration Act are relied on as grounds of review. The grounds of review are particularised in the amended application as follows:
“1. The decision of the [tribunal] involved an error of law, that error being either a misapplication of the law to the facts as found by the Tribunal or a misinterpretation of the applicable law.
Particulars
1.1 The [tribunal] misapplied or misinterpreted the concept of ‘effective protection’ in finding that it had been afforded to the applicant by Jordan.
2. In reaching its decision the Tribunal did not follow procedures prescribed [scilicet] by the Act. Namely, the Tribunal did not act justly and fairly, and according to the merits of the case.
Particulars
2.1 The Tribunal failed to draw the attention of the applicant to, or afford the applicant an opportunity to respond to, communications which the Tribunal had with the United Nations High Commissioner for Refugees’ Legal Officer in Canberra upon which the Tribunal relied in reaching its decision.
2.2 The Tribunal failed to make adequate inquiries as to whether or not the applicant could return to Jordan.
2.3 The Tribunal failed to make adequate inquiries as to the actual status of [the applicant] in Jordan.
3. The Tribunal had no evidence on which to base the decision. Namely, either the person who made the decision was required by law to reach a decision only if a particular matter was established and there was no evidence or other material from which the person could be reasonably satisfied that the matter was established, or the tribunal based its decision on a fact and that fact did not exist.
Particulars
3.1 The Tribunal concluded that the applicant had a right to reside in Jordan.”
3 In the course of argument, counsel for the applicant accepted that the third ground, based on section 476(1)(g) of the Act, does not really take the matter any further. If the applicant succeeds on the first ground, based on section 476(1)(e), then it is unnecessary to rely on the ground in section 476(1)(g). On the other hand, if the applicant fails in his first submission concerning the error or misapplication of law, then the question of evidence as raised by ground (3) does not arise. Accordingly, the argument was limited to the first two grounds.
4 In the second ground, as would be apparent, there are several sub-grounds. I shall deal with each of the grounds separately. Before doing so, however, I propose to say something about the decision and the reasons given by the Tribunal.
THE TRIBUNAL’S DECISION
5 After commenting generally on the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (“the Convention”) and the elements in the definition of refugee in Article 1(A)(2), the reasons of the Tribunal deal with a question described as “Effective Protection in a Safe Third Country”. The Tribunal referred to the decisions of the Full Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and in Minister for Immigration and Multicultural Affairs v Rajendran (unreported, FCA, von Doussa, O’Loughlin, Finn JJ, 4 September 1998) and also to the judgment of Weinberg J in Minister for Immigration and Multicultural Affairs v Gnanapiragasam (unreported, FCA, Weinberg J, 25 September 1998). The Tribunal then summarised what it understood to be the principle which emerges from those cases in the following terms:
“For the purposes of determining whether Australia has protection obligations under the Convention, it is necessary to look to the individual circumstances of a particular applicant to determine whether, if Australia were to return the person to the third or intermediate country, Australia might be in breach of one of the operative Articles of the Convention, and in particular, Article 33.
……………
The question to be addressed is whether the third or intermediate country is a country in which the life or freedom of the applicant would not be threatened (within the meaning of Article 33) and the Government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention. [….] This approach has the sensible outcome that the visa applicant will not be entitled to a protection visa unless in fact protection is actually needed. […] This approach can extend beyond the kinds of circumstances which existed in the three cases [cited above]. Provided that the Tribunal is satisfied that return of the applicant to a third or intermediate country would not breach Article 33, then Australia has no protection obligations in respect of that person.
In determining whether an applicant has effective protection in a third country, relevant considerations will be: whether the applicant has the right to reside in, enter and re-enter the third country; whether there is a risk that the third country will return the applicant to a country where he claims to fear persecution […] These matters must be addressed with care.”
6 The real issue before the Tribunal which has been agitated before me concerns the concept of whether the applicant has the right to reside in, enter and re-enter a third country, namely, Jordan and whether, in determining that question, there was a compliance with the procedures required by the Act.
7 The Tribunal accepted that the applicant is a Bedoon of Kuwait who lacks Kuwaiti citizenship and is therefore stateless. The Tribunal also accepted that conditions would be difficult for the applicant in Kuwait if he had virtually been forced to leave that country. The Tribunal also accepted that it might be difficult for the applicant to re-enter Kuwait in all the circumstances. Whether the current conditions for Bedoons in Kuwait amount to persecution, however, might be debatable. The Tribunal did not decide that question for reasons which become apparent.
8 The Tribunal accepted the applicant’s evidence that he journeyed from Kuwait to Saudi Arabia where he remained for some three years. There was no claim that the applicant suffered persecution in Saudi Arabia and the Tribunal found that he and his family lived and worked for some three years in Saudi Arabia without encountering harm. The Tribunal found that the applicant was not persecuted in Saudi Arabia and voluntarily left that country for Jordan in 1993. The Tribunal concluded, therefore, that his decision to go to Jordan was based on knowledge, gleaned from sources in Jordan or from his community contacts in Saudi Arabia, that general conditions in Jordan suited him better than those in Saudi Arabia. The applicant remained in Jordan with members of his family until his departure on 25 May 1998 on a journey which brought him ultimately to Australia.
9 The Tribunal cited evidence which it considered demonstrated that Jordan was willing to extend support and consider refugee claims of stateless people such as the applicant and his family including giving them international “laissez-passer” or other travel and visa documents. Particular reference was made to Jordanian Law No. 24 of 1973 (Residence and Foreign Affairs Law), which relevantly provides as follows:
“Chapter 1 – Entry of foreigners
Article 4
a) A foreigner shall be authorised to enter or leave the Kingdom [of Jordan] provided either that he holds a valid passport or travel document issued by his country, recognised by the Government of the Kingdom and bearing an entrance or exit visa, or that he holds a travel document issued by the Government of the Kingdom on account of his residence in Jordan, without having a passport or a travel document issued by a Government.
c) International laissez-passers shall be issued to the following categories of persons: 1. Stateless persons and persons with no established nationality; 2. Refugees recognised as such; 3. Persons with an established nationality but who cannot obtain travel documents from their own country or from their country of residence for reasons to be appreciated by the competent Jordanian authorities; 4. The wives and minor children under 16 years of age of persons in the above categories, who do not have an established nationality.
………………………………
Article 16
a) No Jordanian national or Jordanian company or body shall employ a foreigner unless he has a permit to reside in the Kingdom…
Chapter 3 – Residence permits
Article 20
The Director may authorise a foreigner to stay in the Kingdom for a period not exceeding three months and may… extend the said period for three months against payment of a fee of one Jordanian dinar. Such authorisation shall extend to his wife or wives and to all his children…
Article 23
The fee for a residence permit shall be ten Jordanian dinars for the first year, and the fee for its renewal shall be six Jordanian dinars for each year thereafter.
Chapter 4 – Exemptions
Article 29
The provisions of this Law shall not apply to:
f) Persons exempted by virtue of international agreements to which the Kingdom is a party, subject to the scope of such agreements;
h) Persons exempted by the Minister on account of special considerations connected with international or humanitarian courtesy or of the right to political asylum or yet in application of the principle of reciprocity.
Article 30
The following shall be exempt from the payment of residence permit fees:
a) Foreigners working as nurses in government hospitals;
d) Arab nationals, on the basis of reciprocity.
Chapter 5 – Penalties and violations
Article 31
Any person entering the Kingdom in violation of Articles 4 and 5 of this Law (regarding possession of travel documents, including refugee laissez passers, and check-stamped entry through border checkpoints) shall be arrested without further notice and shall be brought before the administrative authority which may either order his expulsion or recommend the Minister to grant him a residence permit or yet refer him to a Justice of the Peace. On conviction by a Court, he shall be liable to a term of imprisonment of between one and six months or to a fine of between 10 and 50 dinars, or to both penalties.”
10 The Tribunal also considered that the information which it had was supported by other independent evidence that Jordan's legislative assurances on those matters are applied in practice and that considerable leeway is given to visa overstayers who are allowed to stay on and work off whatever fees they may have amassed. The Tribunal found that tens of thousands of foreign Arabs live and work in Jordan under such a system even if they do not apply for refugee status.
11 The Tribunal concluded that, given the independent evidence which it cited, the applicant had found effective protection in Jordan from the harm he feared in Kuwait. The Tribunal was satisfied that the applicant had no well founded fear of persecution in Jordan by reason of his Bedoon ancestry. The Tribunal was also satisfied that Jordan would not return the applicant to Kuwait. As to those matters there is no complaint.
12 However, the Tribunal then said that, given the provisions of Jordanian Law No. 24 of 1973 and the other independent advice quoted in its reasons, the Tribunal was satisfied that the applicant has the right to reside in, enter and re-enter Jordan on the basis of renewable visas with the option of applying for naturalisation or nationality within 15 years. Both of those circumstances arose under Jordanian Law No. 6 of 1954 on Nationality. The Tribunal concluded, therefore, that the applicant is not a person to whom Australia has protection obligations under the Convention.
13 The Tribunal subsequently said that it was satisfied that the applicant does not have a well founded fear of persecution in Jordan, that he has effective protection in Jordan from the harm he faced in Kuwait and that, armed with his identity documents, he could return to Jordan and be allowed to remain there in the same way in which he had lived for the past five years. The Tribunal considered that the applicant could choose to avail himself of the Jordanian legislative process to apply for permanent residency or nationality or apply to stay as a refugee and be given the consideration Jordan grants by law to stateless persons.
ERROR OF LAW
14 The first ground of review is that the Tribunal misunderstood the principles to be derived from the Full Court’s decision in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543. In that case the applicant was a Tamil from Sri Lanka who had been afforded protection in France. The Full Court analysed the legislative scheme of the Act insofar as the Act incorporates into Australian municipal law the provisions of the Convention.
15 I have set out above the approach which the Tribunal took to the question which was raised by Thiyagarajah. The Minister accepted that, at least for the purpose of these proceedings, the Tribunal applied a correct view of the law. The essence of the question posed by the Tribunal was whether or not an applicant has effective protection in a third country, namely the right to reside in, enter and re-enter the third country.
16 Those terms do not appear either in the Act or in the Convention. Section 65 of the Act provides as follows:
“(1) After considering a valid application for a visa, the Minister:
(a) if satisfied
(i) ……………….
(ii) the criteria for the visa prescribed by the Act or the regulations have been satisfied;
(iii) ……..
(iv) ……………
is to grant the visa.”
Section 36 provides:
“(1) There shall be a class of visas to be known as protection visas.”
(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”
By those provisions, the language of the Convention is, in a sense, incorporated into the municipal law of Australia, at least for the purposes of determining whether or not a visa should be issued.
17 As von Doussa J pointed out in Thiyagarajah at 556, the relevant provisions of the Convention which impose protection obligations on Australia are Articles 31, 32 and 33 which relevantly provide as follows:
“Article 31
1. The Contracting States shall not impose penalties on account of their illegal entry or presence on refugees who coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation.”
The reference to article 1 appears to be a reference to the definition of refugee in Article 1(A)(2) of the Convention.
“Article 32
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
…………..
Article 33
1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
18 Thus there are three different considerations raised by those three articles. Article 31 is not in question here, there being no suggestion that Australia would be imposing penalties on the applicant. Article 32 has no application in the present circumstances because the applicant was not lawfully in Australia. Article 33 is the only potential source of a protection obligation within the meaning of section 36(2) of the Act.
19 In considering Article 33 and the scheme of the Convention, von Doussa J said (at 557):
“Article 33 imposes the principal obligation required by the Refugees Convention on a Contracting State. The Contracting State must not expel or return a refugee to the frontiers of territories where his life or freedom would be threatened on account of a Convention reason.
Whilst the terms of Art 33 itself do not refer to a well founded fear of persecution held by the refugee it may be that as a matter of interpretation to achieve the object and purpose of the Refugees Convention, a similar test to that which arises under Art 1(A)(2) should be applied in determining whether a proposed expulsion or return of the refugee to another territory contravenes Art 33.
The obligations imposed by Art 33 fall short of creating a right in a refugee to seek asylum, or a duty on the part of the Contracting State to whom a request for asylum is made, to grant it, even if the refugee’s status is such has not been recognised in any country.”
20 Later on, von Doussa J said (at 562):
“It is not necessary for the purposes of disposing of this appeal to seek to chart the outer boundaries of the principles of international law which permit a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status. It is sufficient to conclude that international law does not preclude a Contracting State from taking this course where it is proposed to return the asylum seeker to a third country which has already recognised that person's status as a refugee and has accorded that person effective protection, including a right to reside, enter and re-enter that country. The expression ‘effective protection’ is used in the submissions of the Minister in the present appeal. In the context of the obligations arising under the Refugees Convention, the expression means protection which will effectively ensure that there is not a breach of Art 33 if the person happens to be a refugee.”
21 Then later on at 564, his Honour said:
“The prohibition imposed by Art 33 is against returning a refugee ‘to the frontiers of a territory where….’ The territory may be a country other than the refugee’s country of nationality but the prohibition extends also to a return to the frontiers of the country of nationality.”
22 It is those observations that give rise to the question posed by the Tribunal whether the applicant has the right to reside, enter and re-enter the third country.
23 The applicant contended, in relation to the first ground, based on section 476(1)(e) of the Act, that the Tribunal, in substance, addressed the wrong question, and that the question which should have been addressed by the Tribunal was whether the applicant had a legally enforceable right to enter, re-enter and reside in Jordan, or whether the applicant had a legally enforceable right to have any application for refugee status considered in accordance with the Convention.
24 It was accepted by the Minister that, if that is the correct approach, the Tribunal was in error because it did not adopt that approach. In other words, the Tribunal did not find that the applicant at present has a legally enforceable right to enter, re-enter and reside in Jordan. Nor did the Tribunal decide that the applicant had a legally enforceable right to have any application for refugee status considered in accordance with the Convention. Jordan is not a party to the Convention.
25 I do not consider that there is any warrant in the observations made by von Doussa J for concluding that his Honour was intending to refer to a legally enforceable right. That was certainly not necessary for the decision in Thiyagarajah. In that case, the applicant had in fact been granted rights by France. In Rajendran, the applicant had been given permanent residence in New Zealand, and the Full Court held that that was sufficient to satisfy any concern about possible contravention of Article 33. Article 33 does not speak in terms of any rights. It speaks only in terms of refoulement to the frontiers or territories where an applicant’s life or freedom would be threatened on account of Convention reasons.
26 I consider that all that von Doussa J was saying (and this is consistent with the approach adopted by the Full Court in Rajendran and by Weinberg J in Gnanapiragasam) is that so long as, as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and to live in a third country where he will not be under any risk of being refouled to his original country, that will suffice. I am satisfied therefore that the first ground has not been made out.
FAILURE TO FOLLOW PROCEDURES
27 The second ground is based on section 476(1)(a) of the Act. Section 476(1)(a) provides that a ground for review of a judicially reviewable decision is that the procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed. The applicant relies on the provisions of section 420 which provides as follows:
“(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.”
28 There has been some controversy in this Court as to whether section 420 does indeed specify procedures which are to be observed in relation to the making of decisions. The Full Court of this Court has held in Eshetu v The Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, that section 420 does indeed lay down procedures which are required by the Act to be observed. That question has been the subject of argument before the High Court, although the High Court’s decision on that matter has been reserved. Accordingly, for the time being at least, I am bound by the decision of the Full Court. The Minister contended, as a matter of form, that the decision in Eshetu is wrong but conceded that I am bound by that decision.
29 In Eshetu (at 626 and 627), Davies J observed as follows, when embarking on a consideration of the interpretation of section 476 and the exclusionary provision to be found in section 476(2):
“In a task of interpretation such as this, it is to be recalled that ouster clauses must be construed in their context. Apparently conflicting provisions should be reconciled so as to give to each provision its appropriate operation and so that the objectives which the provisions are designed to achieved are given effect. The task of reconciling the provisions of this Act is readily achieved as it plainly appears that the new provisions were designed to substitute statutory law for the common law as reflected in section 39B of the Judiciary Act and in the ADJR Act. Therefore, section 420 and the other procedural sections of the Act are given full force and effect by the operation of section 476(1)(a) of the Act while section 476(2) excludes the operation of the nominated common law principles. Each provision achieves an appropriate operation without encroaching on the other.
Similarly, although ‘unreasonableness’ […] is excluded as a ground of review by section 476(2), the fact that a decision is so unreasonable that no reasonable Tribunal should have arrived at it does not exclude examination of the decision to see whether an error law, being an error involving an incorrect interpretation of the applicable law, has occurred.
This interpretation, which gives appropriate effect to all the provisions of the Act, accords with the maxim, ex antecedentibus et consequentibus fit optima interpretatio, when speaking of the interpretation of deeds and other written instruments.
…………….
The interpretation also accords with the presumption that the Parliament has acted in the public interest.
……………………
The interpretation gives full effect and enforceability to the terms of section 420 and to the object of the amending legislation which was to set out in statutory form the procedures required while giving to section 476(2) effect in accordance with its terms, namely to exclude the operation of the common law rules of natural justice and unreasonableness as grounds for review.”
30 At 639, Burchett J in Eshetu said, after referring to the explanatory memorandum:
“The whole of this note refers to section 476(1)(a) and thus the statement in the final sentence, which picks up the very language of that provision, referring to the procedures being ‘not observed’ makes it very clear that the intention was to provide, under this ground at least, for a review of a decision which denied natural justice to the applicant in any respect covered by the ‘codified set of procedures’ which was said to ‘afford the same level [of] protection’ as the common law principle.
It is interesting, too, to note that the explanatory memorandum expressly recognised, ‘while each ground of review stands separately they are not mutually exclusive and there may be overlap between some of the grounds’.”
31 The decision in Eshetu, as I have said, is binding upon me. Accordingly it is incumbent upon me to determine whether the ground based on section 476(1)(a) is made out insofar as it is alleged that there was a failure to comply with section 420. The applicant placed some store in the language of section 420(1) which requires that the Tribunal must pursue the objective of providing, relevantly, a mechanism of review that is “fair” and “just”. The other provision which is normally relied on in this context is section 420(2)(b) which obliges the Tribunal, in reviewing a decision, to act according to “substantial justice and the merits of the case”.
32 There were two matters relied on under this ground. The second is more easily disposed of than the first.
FAILURE TO ENQUIRE
33 The second matter was an assertion that the Tribunal failed to make adequate inquiries as to whether or not the applicant could return to Jordan and as to the actual status of the applicant in Jordan. The applicant contended that the Tribunal’s duty to act fairly and justly and according to the merits of the case required it to make its own inquiries as to whether or not this particular applicant had a right to re-enter and remain in Jordan. It was contended that that obligation arose because the point was obscure on the evidence.
34 It was contended that the issue was central to the determination of the case and the information was readily available to the finder of fact - see Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 548. It was suggested that the Tribunal was well placed to make specific inquiries of the Embassy of Jordan in relation to the applicant’s status and whether or not he had a right to re-enter and remain in Jordan. I do not find that submission convincing.
35 This is not a case where the Tribunal failed to make inquiries in relation to a subject matter. The Tribunal, in effect, determined that it did not need to make any further inquiries because it had already satisfied itself in relation to other materials before it, namely, the laws of Jordan to which I have referred above, and other information concerning the way in which those laws were administered. More particularly, the applicant, through his advisers, had also made inquiries in relation to the matters in question.
36 The advisers to the applicant had apparently made inquiries of the United Nations High Commissioner for Refugees in Canberra. Those inquiries prompted a response of 23 October 1998 which was in evidence before the Tribunal. The response came from Mr Steven Wolfson, a legal officer of the High Commissioner. That response referred to the applicant’s solicitors’ facsimile transmission of 6 October 1998 on the subject “Bedoons from Kuwait”. The High Commissioner’s facsimile said:
“UNHCR is not aware of any specific legislation or administrative measures in Jordan dealing with stateless persons. It has been the policy of the Jordanian authorities to allow all Arab nationals holding valid national passports leave to enter and remain for up to six months without visas. After the expiry of this period such persons are, in principle, subject to deportation to their countries of origin unless appropriate immigration arrangements have been made.
In the case of your client, it would appear that he would not gain re-admission to Jordan absent possession of a valid national passport. It is likely therefore that he would be returned to his port of embarkation were he to attempt to enter Jordan now. By the same token it would appear that he cannot return to Kuwait, both for the lack of a valid national passport and because of the present policy of non-return for Bedoons.
We hope this information is of use to you.”
37 For reasons that have not been explained, the applicant’s solicitors’ transmission of 6 October 1998 was not in evidence before the Tribunal. Nor was it in evidence before me. For that reason, if for no other, the assertion or expression of opinion by the legal officer of the High Commissioner that “it would appear that the applicant would not gain re-admission to Jordan absent possession of a valid national passport” carries no great weight at all.
38 In the absence of any evidence as to the facts upon which the High Commissioner was asked to express an opinion, the opinion could not have great weight. The applicant’s contention in substance was that the Tribunal had an obligation to make some inquiries of the Jordanian Embassy, either generally or in particular, as to the applicant’s status. It is significant that the applicant, who was represented by solicitors before the Tribunal, thought it appropriate to approach the High Commissioner but apparently did not think that it was appropriate to approach the Jordanian Embassy. At least, there was no evidence that any approach was made.
39 It does not sit well for the applicant to assert that the Tribunal denied procedural fairness or denied substantial justice by failing to make an inquiry which the applicant himself through his legal advisers did not think it was appropriate to make. In that regard I was referred, fairly late in the argument, to a decision given today by Whitlam J in Saleh Msayer Saket v The Minister for Immigration and Multicultural Affairs [1999] FCA 301. A contention was put to his Honour that it was a denial of substantial justice for the Tribunal to fail to make inquiries of the Syrian Embassy or Syrian diplomatic representatives. His Honour's observations were (at paragraph 18):
“The kind of inquiry which the applicant now says the Tribunal should have made is also quite extraordinary. Section 427(1)(d) of the Act permits the Tribunal to require the Secretary of DIMA to have investigations made. Here DIMA made inquiries of DFAT on 9 September 1998 about residency rights of Kuwaiti Bedoons in Syria. The Executive Government of this country normally conducts relations with foreign countries through DFAT. In this case DFAT chose to seek the requested information from its post in Damascus. The idea that the Tribunal should take it upon itself to bowl up to the door of a foreign diplomatic mission in Australia is preposterous. (A further difficulty with the whole notion may just be the inconvenient fact that Syria does not have an embassy in Australia).”
40 I have no evidence before me one way or the other as to whether or not Jordan has an embassy in Australia, although there was no suggestion that it would have been impossible or inconvenient for the Tribunal to have inquired of some diplomatic legation representing Jordan in Australia. Nevertheless, the comments by Whitlam J appear to me to be somewhat apt in the present context, particularly in circumstances where the applicant’s solicitors considered it appropriate to make inquiries of the High Commissioner but did not themselves make any inquiries of the diplomatic representatives of Jordan. In the circumstances, I consider that any ground of review based on failure of the Tribunal to make further inquiries of Jordanian representatives in Australia concerning the position generally in Jordan or of the situation specifically of the applicant is not made out.
UNDISCLOSED COMMUNICATIONS WITH HIGH COMMISSIONER
41 That leads me to the final ground of review which is based on alleged failure by the Tribunal to draw the attention of the applicant to communications which the Tribunal had with the High Commissioner’s legal officer in Canberra. I have referred already to the facsimile communication of 23 October 1998. In its reasons, the Tribunal, after setting out verbatim the relevant parts of the facsimile of 23 October 1988, said as follows:
“The Tribunal has discussed the UNHCR letter with its author and is satisfied that the Tribunal’s own information on this matter (given below) is correct. It was disclosed to the author that the Tribunal’s information came from the UNHCR’s own database, Refworld. The author did not disagree with the Tribunal's interpretation of the law as it applied to this applicant and he implicitly acknowledged that it could raise doubts as to the accuracy of his advice; the Tribunal’s information was faxed to the author.”
42 It is common ground that, after the hearing at which the applicant was present, the Tribunal communicated with the author of the High Commissioner's facsimile communication. It is also common ground that the Tribunal Member did not disclose to the applicant the fact of any such communication or the terms of any such communication. That failure was said to be a failure to comply with the requirements of section 420.
43 The facsimile was the subject of some interchange in the course of the hearing before the Tribunal which took place on 28 October 1998. The transcript of the proceedings before the Tribunal, which is in evidence before me, indicates that a number of matters were put to the applicant by the Tribunal. The applicant was represented before the Tribunal by his solicitor, a Mr Phillips. It is important to record the interchange which took place, and I shall quote from pages 25 to 29 of the transcript of the proceeding before the Tribunal:
“Ms KellEghan: There are a couple of things that puzzle me about the things you have told me, and they basically relate to why you did not try and regularise your status and your stay in Jordan. So you came in legally, you were given a six month visa and you said you destroyed your passport because if anyone found you with a Kuwaiti passport, they would send you back to Kuwait and you did not want to go back there and be jailed.
But I would have thought that, if anyone did come after you and found you with no papers, they would have put you in jail or deported you on the basis of your other Kuwaiti identification anyway, such as your driver's licence and so on.
So that is why I am mystified about why you destroyed your passport and I would have also thought that people in your position needed every piece of paper you could have, which indeed, you did prove, because you have got all your other documentation, ration cards and school certificates and so on.
I am now going to tell you about the information we have about Jordan’s provisions for people wanting refugee status and this information, basically, underlines my puzzlement at your decision to destroy your passport and not to gain refugee status or not to find some other way of staying on by renewing your visa in Jordan.
Now, according to the Jordanian Constitution, in the chapter headed ‘Entry of Foreigners’ it says ‘a foreigner is authorised to enter or leave the kingdom provided that he holds a valid passport or travel document issued by his country and bearing an entrance or exit visa’.
Indeed, it was under this process that you entered Jordan because you held a valid travel document issued by Kuwait and that was recognised by Jordan. You can also use a travel document issued by Jordan on account of your residence in Jordan without having a passport or travel document issued by any other government. Now you had been in Jordan for four and a half years and you had entered legally. You could have proved residence.
I do not know why you did not seek to obtain the documents that Jordan hands out legally to people wanting to enter and leave the country without going to the trouble of getting a false passport. Also and perhaps a little more pertinent to you, the Constitution says that international laissez-passer will be issued to the following categories of persons.”
44 The Tribunal then cited provisions from the 1973 law and went on to say:
“I also cannot see why you did not simply renew your visa, because that is what so many tens of thousands of people without permanent residence in Jordan do year in and year out, because for Arabs like you, you do not have any visa fees to pay either.
……………
The fact is that most of the people who overstay their visas in Jordan, many of whom come from Iraq, have refugee status there but they are still saying there and they choose to pay the overstay fee or work out an alternative arrangement where they work in the service industry as cheap labour.
According to the UNHCR, refugees in Jordan, that is people who have refugee status who have applied to the UNHCR, receive a monthly subsistence allowance and medical care at government health facilities. They also get the assistance of the Jordanian Red Crescent Society.
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Refugees who are accepted as refugees and receive the refugee allowance are for that reason not allowed to work. Their children can go to government run schools, however. No refugee recognised by the UNHCR has ever been expelled from Jordan.
According to the United States Committee for Refugees, Jordan has been a world leader in its generosity towards refugees and displaced people, which is what you are. So much so that it has, it bears the distinction of having the highest ratio of refugees to indigenous population of any country in the world.
What all this information is telling me is that Jordan is generously disposed towards accepting refugees. Arabs such as yourself are easily able to enter the Kingdom and get visas to stay for a period of months which can be easily renewed without extra fees.
If you over-stay your visa and do not bother to renew it, you have a fine to pay or you can work off that fine. Jordan will recognise you as a stateless person and will give you travel papers and other papers to support you during your stay there. There is a huge UN refugee operation in Jordan, principally because of the Palestinians there but basically, having applied to them for refugee status, you are entitled to certain privileges under the UN and the protection of the UN there.
I am sure that you would have known part, if not all of this, before you went to Jordan, which would have persuaded you to go to Jordan in the first place and that you would have known it all the time you spent there. Why did you not take advantage of any of these provisions?”
45 The response to all of that, through an interpreter, was as follows:
“THE INTERPRETER: First of all I do not carry any documentation - Jordanian documentation, to prove myself in front of any United States [sic] office. And second, I am stateless, a Bedoon person with no homeland. My original homeland, Kuwait, kicked me out of the country and I took out all my rights as a citizen of their country. I wanted to stay in Jordan as a way of obtaining some means or documentation to leave the whole area and ask for refugee status in another recognised country.
MS KELLEGHAN: Why did you not want refugee status in Jordan?
THE INTERPRETER: First of all, I did not know about all these [sic] information about their refugee status and I did not have any documentation to apply with.”
46 The applicant’s solicitor was then invited to address the Tribunal. At pages 41 and 42 of the transcript, the following interchange appears :
“MR PHILLIPS: And he suffered because he is a Bedouin and because Bedouin is a social group and also because perhaps political opinion was imputed to him. If he goes back to Kuwait he has got a real chance that the people who locked him and his son up last time will do the same thing again. He cannot go to Jordan, and the evidence is, in our submission, at best equivocal about the benign attitude of the Jordanian authorities. They may be benign towards the Palestinians, they are not always benign towards other people.
If there is an issue about the Bedouin thing in general I would like to know because if the Tribunal is going to make issue with the Bedouin issue I would like the chance to make some submissions on it.
MS KELLEGHAN: Sure. In this case I do not think I will.
MR PHILLIPS: Okay.
MS KELLEGHAN: I will have to go back and think about it, but this case I do not think I will. What I will be concentrating on is whether return to Jordan is feasible or not.
MR PHILLIPS: Yes.
MS KELLEGHAN: Okay. But just as a matter of interest, I was letting you know that I understand there are a couple of Tribunal decisions now that advocate return to Kuwait for a Bedouin.
MR PHILLIPS: Well, the UNHCR - I mean - we apologise for our late submission?‑
MS KELLEGHAN: That is quite all right. I understand why.
MR PHILLIPS: The UNHCR still say there is a policy of non‑return for Bedouins to Kuwait?
MS KELLEGHAN: That is right. Yes. I do not know the circumstances these, I mean, they are not my cases so I do not know.
MR PHILLIPS: And the UNHCR also says in response to our letter that ‘Unless appropriate immigrations are made you are subject in principle to deportation’. Now, "in principle" means what it says. It means that you are at risk in Jordan and the government can change or a national alliance tomorrow and Bedouins could become very bad news indeed. I know when I speak to people at Villawood, Iraqis and various people when they speak about Bedouins they speak about the way in which my grandparents would have spoken about Aboriginals. There is certainly a very pan-Arabic view about Bedouins and so it is quite understandable he would not have felt safe in Jordan, however nice they are to Palestinians. Unless the Tribunal has any further questions, they are our submissions.”
47 The reference by Mr Phillips to “our late submissions” is a reference to written submissions which attached the facsimile of 23 October 1998, from the High Commissioner.
48 The complaint made on behalf of the applicant is that the facsimile from the High Commissioner was received into evidence by the Tribunal without comment. It was never suggested to Mr Phillips that there was a problem with the document or that it would not be given appropriate weight. Notwithstanding the absence of any such indication, it appears from the Tribunal’s reasons that the Tribunal made an inquiry of Mr Wolfson and that the result of that inquiry in some way influenced the reasoning of the Tribunal which led to the decision to affirm the delegate's decision to refuse a protection visa. I am somewhat troubled by the procedure which was adopted by the Tribunal and it leaves me with some feeling of disquiet.
49 The Tribunal may have been entitled to give no weight at all to the communication of 23 October 1998. If it had chosen to do so, there would have been no obligation to inform the applicant in advance that it intended to give no weight to the facsimile. There were, indeed, reasonable grounds upon which the Tribunal could conclude that no weight should be given to the facsimile. The first is the statement that the High Commissioner was unaware of any specific legislation or administrative measures in Jordan dealing with stateless persons. Such an observation appears to run counter to the finding made by the Tribunal that there was in fact in force in Jordan legislation in the form of Jordanian Law No 24 of 1973, the Residence and Foreign Affairs Law.
50 That law specifically provided in Chapter 1 Article 4 as follows:
“(c) International laissez-passer shall be issued to the following categories of person:
1 Stateless persons and persons with no established nationality.
2 …………….
3 ……………..
4: The wives and minor children under 16 years of age are persons in the above categories who do not have an established nationality.”
That provision appears to apply directly to the applicant who contended that he is a stateless person with no established nationality.
51 Chapter 3 Article 20 also provides:
“The Director may authorise a foreigner to stay in the Kingdom for a period not exceeding three months and may […] extend the said period for three more months against payment of a fee […]. Such authorisation is to extend to the wife or wives [of the foreigner] and to all his children.”
Such provisions appear to be inconsistent with a statement that there is no specific legislation dealing with stateless persons.
52 The facsimile expresses the opinion that the applicant would not gain admission to Jordan absent possession of a valid national passport. That opinion is based on facts which were not disclosed to the Tribunal. In circumstances where the communication was addressed to solicitors, one might be excused for wondering why the solicitors’ transmission of 6 October 1998 was not put before the Tribunal.
53 It is certainly not clear from Jordanian Law No 24 of 1973 as to whether or not the holding of a valid national passport is a pre-requisite of entry into Jordan. Chapter 1 Article 4(a), insofar as it provides that a foreigner shall be authorised to enter Jordan, provided that he holds a valid passport or travel document or that he holds a travel document issued by the Government of Jordan, suggests that there is some requirement. However, it is by no means clear just what travel documents the applicant had available to him.
54 The applicant said to the Tribunal that he had destroyed his passport issued by Kuwait. The Tribunal found that the applicant’s claim of having destroyed the passport had been fabricated to strengthen his case for a protection visa in Australia. Thus there was in fact a finding by the Tribunal that the applicant did have available to him some travel document issued by Kuwait. In those circumstances there was evidence before the Tribunal upon which it could base a conclusion that the applicant may be authorised to enter Jordan in accordance with Jordanian Law No. 24 of 1973.
55 Accordingly, it would have been open to the Tribunal, in the light of the terms of the facsimile of 23 October 1998, to give it no weight at all. In those circumstances it is difficult to see what prejudice was suffered by the applicant by reason of the Tribunal having made some inquiry of the author of the facsimile and forming a view, admittedly on the basis of communication which is not disclosed, that the author did not disagree with the Tribunal's interpretation of Jordanian Law No. 24 of 1973.
56 Once it is accepted that there is, in fact, a law dealing with stateless persons, the conclusion that it was implicit in what Mr Wolfson said that doubts as to the accuracy of his advice could be raised, would be a justified conclusion. The Tribunal’s reasons did indicate that the information available to the Tribunal was in fact transmitted to Mr Wolfson by facsimile.
57 What is clear from the transcript, which I have set out verbatim above, is that the Tribunal put to the applicant the Tribunal’s analysis of Jordanian laws applicable to the applicant. The applicant was represented by his solicitor at that time. That is the same material that the Tribunal put to Mr Wolfson. Thus, it is clear that the applicant knew of the Tribunal's view on Jordanian laws. The conversation with Mr Wolfson did no more than reinforce the Tribunal's position as it had been expressed to the applicant and his solicitor. There is no suggestion that the conversation involved any new material of which the applicant was not aware.
58 The applicant’s contention raises the question of just what is the content of the requirement to decide a case ‘according to substantial justice’ or providing a mechanism of review that is ‘fair and just’ within the meaning of section 420. Counsel for the Minister referred me to a number of decisions, the general substance and effect of which was summarised by Lindgren J in Mohamed Layan Dulan v Minister for Immigration and Multicultural Affairs (unreported, FCA, Lindgren J, 27 November 1998). There are two levels at which the argument proceeded in this regard. The first concerned the extent to which it is incumbent upon a Tribunal in these circumstances to put to the applicant matters other than matters which might be considered personal to the applicant. Lindgren J, in the decision to which I have referred, did not find it necessary to explore differences of approach which may be found in the cases which he listed.
59 The Minister drew attention to section 57 of the Act which provides as follows:
“(1) ‘Relevant information’ means information that the Minister considers:
(a) would be the reason or part of the reason for refusing to grant a visa and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member
(c) ……………….
(2) The Minister must:
(a) give particulars of the relevant information to an applicant in the way that the Minister considers appropriate in the circumstances;
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application;
(c) invite the applicant to comment on it..”
60 The Minister contended that, at this level, information concerning the law of Jordan and the way in which it is administered is not material which is personal to the applicant within the meaning of section 57. The Minister’s contention was that provisions such as section 57 are relevant to the content of the requirement for substantial justice or the merits of the case or a mechanism of the view that is fair and just. That is to say, insofar as the Act itself addresses this question, it draws a distinction between material which is personal to the applicant on the one hand and material which is of general application.
61 The Minister referred me to the decision of Luu v Renevier (1989) 91 ALR 39 at 45 where the Full Court cited a passage from Mason J in Kioa v West (1985) 159 CLR 550 at 587 which ends with the following observation:
“If in fact the decision maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter.
62 The Full Court in Luu v Renevier went on to say that, in that case, there was no question of the application having been rejected by reference to a consideration personal to the applicant which had not been dealt with by him in his application. That seemed to be a critical distinction in terms of a conclusion as to whether or not a ground of review was made out.
63 As Lindgren J observed in Dulan (at 18), there has developed a difference of approach on that question. The Minister contended, however, that it was not necessary for me to decide that question and I am disposed to accept that submission. Lindgren J concluded (at 23) that the real question in this context is whether the substance and effect of material intended to be relied upon by the Minister was put to the applicant. Merkel J in Ozmanian v The Minister for Immigration, Local Government and Ethnic Affairs (1996)137 ALR 103 at 123 observed:
“Procedural fairness does not necessarily require disclosure of all of the details of the case against the applicant; it is sufficient if the substance or gravamen of the information intended to be relied upon is brought to his or her attention.”
64 Lindgren J in Dulan said (at 23):
“Nothing in Kioa v West suggests that the general law requirements of procedural fairness, where they apply, necessarily includes a requirement that the person affected be shown the actual documents that contain potentially adverse material. The point made in that case was that an applicant should know of the case sought to be made against him in reliance upon the documents.”
65 That appears to me to be the correct approach to be adopted in these circumstances. The process of the Tribunal is an inquisitorial one, although, on the basis of Eshetu, it is a process which must comply with section 420 and if there is a failure to comply with the terms of section 420 there is a ground made out under section 476(1)(a).
66 I do not consider that it is unfair or unjust to decide a case on the basis of material which has been put fairly and squarely to the applicant. Nor do I think that there is a failure to decide according to substantial justice and the merits of the case where a conclusion which the Tribunal contemplates, and the material upon which the Tribunal proposes to base such a conclusion, have been put fairly and squarely to the applicant. I consider that the facts of this case indicate that the Tribunal indicated to the applicant the Tribunal’s view that the Jordanian law and the other independent material available to the Tribunal might lead the Tribunal to the conclusion that a person in the position of the applicant would be accepted into Jordan as, indeed, the applicant had been some five years previously.
67 The material which led the Tribunal to such a conclusion was referred to in express terms in the course of the hearing. The reason for attaching no weight to the communication from the High Commissioner was not a matter which required disclosure to the applicant. The weight to be given to any evidence before the Tribunal was a matter for the Tribunal. In the circumstances, notwithstanding the disquiet I have expressed, I do not consider that the ground referred to in section 476(1)(a) has been made out in this case.
68 It follows in my opinion the application should be dismissed with costs.
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I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. |
Associate:
Dated: 25 March 1999
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Counsel for the Applicant: |
C. Jackson |
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Solicitor for the Applicant: |
Legal Aid Commission of NSW |
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Counsel for the Respondent: |
S. Lloyd |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
24-25 March 1999 |
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Date of Judgment: |
25 March 1999 |
