FEDERAL COURT OF AUSTRALIA

Zomaya v Minister for Immigration & Multicultural Affairs [2000] FCA 222

MIGRATION – protection visa – application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) – no grounds of review advanced by applicant

Migration Act 1958 (Cth), ss 36(2) & 476

KHNANO ZOMAYA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 5 OF 2000

EMMETT J

28 FEBRUARY 2000

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Iraq who arrived in Australia on 8 June 1999.  On 15 June 1999 he lodged an application for protection visa with the Department of Immigration and Multicultural Affairs.  On 19 July 1999 a delegate of the Minister refused to grant a protection visa and on 19 July 1999 the applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 4 January 2000 the Tribunal affirmed the decision not to grant a protection visa. 

2                     The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.  In the opinion of the Tribunal the applicant did not satisfy the criterion set out in section 36(2) of the Migration Act 1958 (Cth) (“the Act”).  The applicant now seeks an order of review of that decision by this Court, by application lodged on 5 January 2000.  The application discloses no grounds.  The applicant has simply written:

“Details will be sent at a later date.”

3                     The applicant appeared in person before me today.  When invited to indicate the grounds upon which he asked the Court to interfere with the Tribunal’s decision, the applicant was unable to do anything more than to say that the decision of the Tribunal was wrong.  It is clear that the applicant had no comprehension of the limitations on the power of this Court to interfere with the decision of the Tribunal. 

4                     I have read the reasons of the Tribunal.  They do not on their face disclose any ground within section 476 of the Act.  It is, however, desirable that I summarise briefly the findings made by the Tribunal. 

5                     The applicant is a married Assyrian Christian from Iraq aged in his late forties.  His wife and children are in Jordan.  He travelled from Jordan to Australia using a genuine Iraqi passport and a false Australian visa.  The passport and false visa document were confiscated by the authorities during the journey.  Upon arrival at Sydney Airport the applicant was placed in immigration detention. 

6                     Upon being interviewed by Department officials at the airport, the applicant told them he was born in Dohuk, Iraq.  He left Iraq in May 1995 and went to Amman in Jordan where he lived until leaving for Australia in June 1999.  The applicant was represented by an adviser at the hearing before the Tribunal and the applicant's adviser made written submissions in support of his claim.  The thrust of the submissions was that the Assyrian Christian minority is at risk of persecution by Muslims in Kurdish controlled Northern Iraq.

7                     Country information available to the Tribunal from independent sources consistently describes an appalling litany of human rights abuses by the regime of Saddam Hussein in Iraq.  However, the Tribunal was not satisfied that the applicant faces a real chance of harm in Northern Iraq.  The city of Dohuk is in the area of Northern Iraq which has been under Kurdish control since April 1991.  At that time the United States and its allies declared a no fly zone over Iraqi territory north of the 36th parallel.  The Kurdish safe haven is protected by US, British and Turkish war planes stationed at the NATO base in Southern Turkey.

8                     The applicant claims to fear harm from both the Iraqi government authorities and from the Kurdish authorities in control of Northern Iraq.  He claims his problems with the Iraqi authorities began in 1979 when he refused to spy for the police and that they continued through the 80s.  He claims that he was arrested and tortured in 1988 and again in 1990 because he would not join the Baath Party and because he had worked for foreign companies over the years.

9                     The applicant claimed that he fled to Northern Iraq to escape the Iraqi authorities.  He claims the Kurds twice arrested him and accused him of being a spy.  However, relatives and friends who are members of these Kurdish groups were able to obtain his release and he remained in Dohuk for another 18 months, living with relatives and friends.  He claims he cannot return to Northern Iraq because the Kurdish authorities will accuse him of being a spy.  It was submitted on his behalf that he is at risk of harm in Northern Iraq because of his Christian religion and Assyrian nationality.

10                  The Tribunal had serious doubts about the applicant's credibility and his claims in respect of the Iraqi government authorities.  The applicant passed through Iraqi government check points when he returned to Kirkuk in 1994 using identification in his own name.  He obtained a passport in his own name and travelled the several hundred kilometres by car to the Jordanian border, which he crossed using that passport.  Because of the evidence about restrictions on movement in Iraq and the existence of security check points, the Tribunal was not satisfied that the applicant is wanted by, or of adverse interest to, the Iraqi authorities.  The Tribunal accepted that the applicant may have experienced some harassment for refusing to joint the Baath Party but was satisfied that he had exaggerated those matters and that he was not subjected to the arrests and torture that he claims.  The Tribunal considered that the applicant fabricated the claims of being wanted by the Iraqi authorities.

11                  The Tribunal found that the applicant was born and raised in Dohuk City in Northern Iraq, an area controlled by Kurdish groups opposed to the Iraqi government and protected by the United Nations no flight zone.  The Tribunal found that the applicant has seven of his nine siblings in Dohuk and they are all married.  The applicant also has cousins and other relatives living in Dohuk.  He and his family lived in Dohuk for four years until shortly before leaving Iraq.  Some of the applicant's relatives and friends are members of the Kurdish groups controlling Northern Iraq and on his own evidence those relatives and friends were able to obtain his release from custody on two occasions when he was accused of giving information to the Assyrian parties and the Baath Party.  The applicant continued to live in Dohuk for 18 months after the second incident. 

12                  The Tribunal considered that even if it were to accept the applicant’s claims of being at risk from Iraqi authorities, it was not satisfied that he is wanted by or of adverse interest to the Kurdish authorities controlling Northern Iraq.  The Tribunal was satisfied that he could return to live in Dohuk City in Northern Iraq where his family and friends remain who are members of the controlling Kurdish groups.

13                  The Tribunal accepted that the applicant was arrested by the Kurds, as he claimed, but was not satisfied that he would be of adverse interest to the Kurdish authorities in Northern Iraq as a suspected spy or for any other reason.  The Tribunal was satisfied, in view of the first hand reports from Christian and Assyrian leaders in Northern Iraq that Assyrian Christians are not at risk of harm from or of being persecuted by Muslims in Northern Iraq.

14                  The Tribunal's conclusion was that the applicant is not wanted by, or of adverse interest to, the Kurdish authorities and that he faces no real chance of harm in Northern Iraq for any Convention reason.  It is for those reasons that the Tribunal confirmed the decision of the Minister’s delegate not to grant a protection visa. 

15                  I am unable to discern in the reasons any ground of review within section 476 of the Act.  Accordingly, I consider that the application should be dismissed.  I will order that the applicant pay the respondent’s costs of the application.

Associate:

Dated:              8 March 2000