FEDERAL COURT OF AUSTRALIA

Baban v Minister for Immigration & Multicultural Affairs [2000] FCA 1341

MIGRATION – appeal from dismissal of application for judicial review of a decision of the Refugee Review Tribunal to affirm a decision of a delegate of the Minister not to grant the applicant a protection visa – the applicant claimed to be a militia man in the Patriotic Union of Kurdistan (PUK) who feared persecution, if he returned to Iraq, both by agents of the Iraqi government and by members of the Kurdistan Democratic Party on account of his political opinion – the Tribunal rejected that claim without making any reference to a letter, written on the letterhead of the Australian branch of the PUK, which the applicant produced in support of his claim - the applicant also claimed to be a refugee sur place on the basis that, having departed Iraq illegally, he was likely to suffer harm for a Convention reason upon his return – the Tribunal rejected that claim without dealing specifically with passages in two independent reports about conditions in Iraq which were before it – whether the primary Judge erred in holding that the compliance of the Tribunal’s written statement of reasons with the procedures which s 430(1) require it to observe is not reviewable under s 476(1)(a) – whether the primary Judge erred in rejecting, in any event, the submission that the Tribunal’s failure to refer to the letter and to deal specifically with the passages in the two reports constituted a failure to comply with s 430(1) – whether the Tribunal’s failure to refer to the letter constituted an error of law within the meaning of s 476(1)(e)

Migration Act 1958 (Cth), s 430(1), s 476(1)(a) and (e)

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, followed

Sivasubramaniam v Minister for Immigration and Multicultural Affairs [2000] FCA 1035, distinguished

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940, referred to

Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405, referred to

HEMAN OMAR SHARIF BABAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 402 Of 2000

GRAY, LEHANE AND MERKEL JJ

21 SEPTEMBER 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Iraq.  He and his infant son arrived in Australia on 15 June 1999.  They lodged applications for protection visas.  The appellant made allegations of fact on the basis of which he claimed to have a well founded fear of persecution on account of his political opinions.  His son made no independent claims; his application was dependent on that of the appellant.  A delegate of the respondent Minister refused the applications.  On an application for review under Pt 7 of the Migration Act 1958 (Cth), the Refugee Review Tribunal, by a decision dated 6 September 1999, affirmed the delegate’s decision.  The appellant applied under Pt 8 of the Migration Act for judicial review of the decision of the Tribunal and, on 12 April 2000, a judge of the Court ordered that that application be dismissed.  The appellant now appeals from the decision dismissing, with costs, the application for judicial review.

background facts

2                     In its statement of reasons prepared under s 430 of the Migration Act, the Tribunal quoted the following convenient summary of the appellant’s claims, extracted from a written submission to the Tribunal:

“I was a peshmarga, a militia man in the Patriotic Union of Kurdistan (PUK).  I was involved in distributing pamphlets to disseminate the beliefs of the PUK and which so try [sic] to convince the people of Kurdistan in Mosul and Kirkuk about the party’s ideas and win more members to the party.  I did this work in the information section of the party.  And I served on the organising section of our cell.  Altogether there were 30 of us in the cell.  In 1996, I went on a three month course learning about the party and its beliefs.  This course started on 15 July 1996.  On 25 August I went back to Suleimaniya on leave and on 31 August the Iraqi military invaded Arbeil and so I couldn’t complete the course …  In July 1998, we were instructed to attach ourselves to the Suleimaniya soccer team for a match arranged in Kirkuk between the coordination of the party and the leader of the team.  This would enable us to deliver and distribute pamphlets in Kirkuk.  The Party leaders believed this was the way to spread the themes of the Party.  The pamphlets contained photos of Kurdish martyrs and of the torture inflicted on Kurds by Saddam’s regime.  On our way from Suleimaniya to Kirkuk there were checkpoints at Tasloja and Bakker Jamu belonging to the Iraqi authorities.  There they checked our ID’s [sic] and searched the vehicle but found nothing.  At Chamchamal checkpoint – which belonged to the PUK – the soldiers spoke with the team and looked at our papers.  That night my colleagues and I sneaked into Kirkuk city and completed our distribution mission.  The next morning on arriving at the bus to return, one of our group Tawana, was not in attendance.  We waited but then left without him to return to Suleimaniya.  When we arrived the mission leader told us our lives were in danger and warned us to be very careful and to be concerned for our security because we had been followed by Iraqi agents into Kurdistan.  He told us that the danger arose from the disappearance of our colleague Tawana.  In February 1999 my colleague Shalao was killed in Suleimaniya by a hand grenade and his brother was injured.  The Iraqi Mukhabarat are active in Suleimaniya, even though the administration is in the control of the PUK.  I am known to be a member of the peshmarga of the PUK, so I am a target for the Mukhabarat surveillance and action groups.  A friend of our family, who is a Kurdish security officer, told me they had arrested someone who turned out to be a double agent working also with the Mukhabarat.  This agent had an order to arrest me and some other people.  My friend assured me that I was being followed by Iraqi agents but he could not protect me because they were numerous.  He strongly urged me to leave Kurdistan for a safe place.  He gave me some money because he knew my situation was really risky and dangerous.  In April 1999, I left … with a smuggler … the smuggler prepared a fake passport.  At the checkpoint, KDP people searched our car and checked our documents for 3-4 hours ... the passport I was given had my photo in it but I did not notice the name used.  That is why I passed through safely.”

3                     The appellant claimed also that his father was a well known member of the PUK and that his father’s shop had been set on fire in February 1998 because of the connection with the PUK.  The appellant claimed to fear persecution, if he returned to Iraq, both by agents of the Iraqi government and by members of the Kurdistan Democratic Party which, he claimed, had made allegations against him and members of which had been responsible for the torching of his father’s business premises.

4                     The appellant called two witnesses – both Iraqi citizens who held Australian protection visas – who gave evidence which in certain respects supported the appellant’s claims.  The appellant also produced what he claimed was the warrant for his arrest and his and his son’s identity cards.  Additionally, he had provided to the Tribunal a letter on the letterhead of the Australian branch of the PUK.  Because of the importance of that letter (to which we shall refer as the “PUK letter”) to the argument on the appeal, we shall set it out in full.

“PATRIOTIC UNION OF KURDISTAN

P.O. BOX        235      Australian Branch

LIVERPOOL   2170                                                    TEL  02 9601 8815

NSW   AUSTRALIA                                                    FAX 02 9601 8815

--------------------------------------------------------------------------------------

TO WHOM IT MAY CONCERN

This organisation can confirm that HEMAN OMAR SHARIF BABAN the asylum‑seeker in Villawood Detention Centre is:

1.         From a Kurdish family in Suleimaniya, Iraq.

2.         A respected member of our party, the Patriotic Union of Kurdistan (PUK) as one of our young militiamen or peshmarga.

3.         As a result of duty for our party in Kirkuk, came to the vengeful attention of the Iraqi Mukhabarat who sent a team into our area to seize him in order to liquidate him.

4.         Because he is married with a baby boy, our Party leaders in Suleimaniya strongly urged him to flee and seek overseas asylum because the party could not guarantee his safety from Iraqi Mukhabarat agents who we know operate in our territory.  He followed the party advice.

4.[sic]  The PUK knows Heman’s father Mr Omar Sharif Baban and his mother Mrs Nassryn Fatah Marouf because they too have had an active role in the Kurdish movement as strong supporters.  In fact his father has had his electrical business fire-bombed by the PDK in Suleimaniya because of his PUK membership.

I would be prepared to give further detail as a witness in his RRT hearing if required.

SARBAS FATATH

Past President

9 August 1999”

tribunal’s findings and reasons

5                     The Tribunal accepted that the appellant came from PUK–controlled Suleimaniya and that he was a supporter of the PUK.  Otherwise, it rejected most of his claims.  It said:

“The applicant claims to fear harm from the Iraqi authorities and the KDP.  He claims the Iraqi authorities learned of his leading role in the PUK peshmarga and issued a warrant for his arrest.  I do not accept these claims.  The applicant produced the original of the arrest warrant and his original ID card.  He said he brought these documents with him to Australia.  He said he left Iraq using a passport obtained by a smuggler but he did not know the identity in the passport.  I find it implausible that a fugitive from the KDP and Iraqi security would travel through security checkpoints carrying a passport but not knowing the name in it.  I find it implausible that such a fugitive would carry with him an ID card in his real name if it conflicted with the identity in the passport.  I find it implausible that such a fugitive would go through security checkpoints carrying an original warrant for his arrest naming him as an enemy of the Iraqi regime.  I find it implausible that an Iraqi double agent operating in PUK controlled areas would carry original arrest warrants for PUK members.  There is independent evidence that fraudulent versions of such official Iraqi documentation is [sic] readily available.  I do not accept the warrant as genuine.  I am not satisfied the applicant used a false passport to leave Iraq or that his departure was illegal.”

6                     The Tribunal proceeded to find explicitly that it did not accept that the appellant was a peshmarga of the PUK: independent evidence indicated that peshmarga have PUK identification cards.  The appellant had said that he had had one, but had left it behind.  The Tribunal refused to accept that explanation, finding it implausible that he would carry both his civil identification card and an original arrest warrant but not his PUK card.  Additionally, for reasons which it gave, the Tribunal did not accept the evidence of one of the witnesses called by the appellant that the appellant was known to him from meetings with the PUK leader.  The Tribunal does not, anywhere in its reasons (but particularly in the sections to which we have referred), make any findings about the PUK letter or, indeed, mention it at all.

7                     The Tribunal found also that it was not satisfied that the appellant was known to or wanted by the KDP.  It gave reasons for that finding which were not attacked either before the primary Judge or on appeal.  It found also, after considering independent country information, that the appellant did not have a valid sur place claim to be a refugee on the basis that, as a person who had departed Iraq illegally, he was likely to suffer harm for a Convention reason upon his return.  The Tribunal was not satisfied that he had left illegally or that “being a returnee per se is likely to give rise to a well founded fear of harm for a Convention reason”.

8                     The Tribunal acknowledged “the horrendous record of human rights abuses by the Iraqi regime and … the violence between the PUK and KDP Kurdish political factions”.  It found, however, that the appellant was not of adverse interest to the Iraqi authorities, the KDP or any other organised group; it was not satisfied that the appellant had a well‑founded fear of persecution for a political or any other Convention related reason.  Accordingly, the Tribunal found that the appellant did not satisfy the criterion in s 36(2) of the Migration Act for a protection visa and affirmed the decision not to grant visas to the appellant and his son.

application for judicial review; conclusions of the primary judge

9                     The only ground of review pressed before the primary Judge was that procedures required by the Migration Act to be observed in connection with the making of the Tribunal’s decision were not observed (Migration Act, s 476(1)(a)).  It was said that the Tribunal had failed to observe procedures which s 430(1)(c) and (d) required it to observe.  Section 430 provides:

“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.”

10                  Specifically, it was said that the Tribunal had not referred to the PUK letter and that, in making its findings to the effect that the appellant was not a refugee sur place, the Tribunal did not deal specifically with two passages in two of the reports about conditions in Iraq which the Tribunal had before it.

11                  The primary Judge held, relying on Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 at 624–631, that the Tribunal’s written statement of reasons was not reviewable pursuant to s 476(1)(a).  His Honour held also, however, that in any event the submission that the Tribunal had failed to comply with s 430(1) was not made out: it was not necessary for the Tribunal to refer to every piece of evidence inconsistent with its findings.

the appeal

12                  By his amended notice of appeal, the appellant claims that the primary Judge erred both in finding that the Tribunal’s written statement of reasons is not reviewable pursuant to s 476(1)(a) of the Migration Act and in finding that the Tribunal had not failed to comply with procedures that were required to be observed in connection with the making of its decision: the particular matters relied on are the failure of the Tribunal to mention the PUK letter and the failure to deal specifically with the two items of country information.  The appellant claims also that, by failing to have regard to the PUK letter, the Tribunal made an error of law within the meaning of s 476(1)(e) of the Migration Act.

13                  Two aspects of the appeal may be dealt with immediately and briefly.  One is his Honour’s reliance on Xu for the proposition that s 430 does not prescribe procedures of the kind referred to in s 476(1)(a).  In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, the Full Court (Black CJ, Sundberg, Katz and Hely JJ; Kiefel J dissenting) held to the contrary and declined to follow Xu.  Counsel for the Minister formally submitted that the decision in Singh was wrong but accepted that we would follow it, as indeed we are bound to do.  Accordingly, the broader ground on which the primary Judge based his decision cannot be supported.

14                  The “error of law” ground rested on the proposition that the Tribunal’s failure to have regard at all to the PUK letter (assuming, for the present, that the Tribunal did fail to have regard to it) amounted to such an error.  For that proposition, counsel for the appellant relied on the decision of Moore J in Sivasubramaniam v Minister for Immigration and Multicultural Affairs [2000] FCA 1035 at par 51 and par 52.  Sivasubramaniam, however, was concerned with a state of affairs very different from that with which this case is concerned.  In any event, as the concluding part of par 52 demonstrates, the passage on which the appellant relies does not support the proposition which he asserts.  We can see no ground for holding that, if the Tribunal did not have regard to the PUK letter, it made an error of law reviewable on the ground set out in s 476(1)(e).

section 430: the principles

15                  The principles are comprehensively stated in the reasons of the majority in Singh at pars 44‑60.  In summary, s 430(1)(b) requires the Tribunal to state the actual reasons for its decision so that, for example, a statement of reasons which the Court might consider unsatisfactory is not, of itself, a failure to comply with s 430; there is no specific requirement that the Tribunal give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it has made, subject to the qualification that, if one of the reasons which actually induced the Tribunal to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the actual reasoning process; the requirement, under s 430(1)(c), to set out findings on material questions of fact imposes a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision which the Tribunal is required to make; for that purpose the material facts are not limited to those which the statute requires to be decided but extend to all of the material questions of fact raised by the material and evidence before the Tribunal (Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at par 19).

16                  The majority judgment in Singh explains that latter requirement at pars 55 to 57, as follows:

“55.     The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision.  Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it.  Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them.  As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691, in the context of s 43 of the AAT Act:

‘Section 43 is not to be construed in a pedantic spirit, but sensibly.  If the Tribunal’s reasons expose the logic of its decision, and contain findings on matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with a requirement to include ‘findings on material questions of fact’.’

56.       Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one.  But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Durairajasingham [Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405] at pars [65] and [67].

57.       Thus whilst materiality will not necessarily depend upon how an applicant chooses to present the issues, we do not agree that the only material facts are those on which the Tribunal is legally required to make findings: contrast Xu at pars [49] and [51].  A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.”

17                  The passage from the judgment in Durairajasingham, to which their Honours refer, played a significant part in the argument before us.  There, McHugh J pointed out that, in some circumstances, the obligation to set out the reasons for a decision of the Tribunal will require the Tribunal to state whether it has rejected or failed to accept particular evidence.  We quote the passage in par 22 below.

application of the principles

(a)        the country information

18                  The appellant relied on a facsimile dated 1 May 1998 from the International Organisation for Migration, Canberra and a report dated 13 May 1999 of the Department of Foreign Affairs and Trade entitled “Iraq: Relocation Options for Returning Nationals who Fear Persecution in their Home Country and Alternative Gateways by which Safe Areas may be Accessed”.  The facsimile said this:

“THE INFORMATION AVAILABLE FROM THE UN HUMAN RIGHTS COMMISSION, HCR AND OTHER HUMANITARIAN AGENCIES, SUGGEST [SIC] THAT THE RETURN OF UNSUCCESSFUL ASYLUM SEEKERS TO BOTH COUNTRIES [SCIL, ALGERIA AND IRAQ] GENERALLY CONSTITUTE [SIC] A REAL THREAT TO THEIR SAFETY AND IT IS NOT ALL RISK‑FREE.  IN OTHER WORDS, GENUINE FEARS OF PERSECUTION SURROUND THE RETURN OF SUCH PERSONS TO BOTH COUNTRIES.”

The Department’s report included the following statement:

“MEMBERS OF THE IRAQI‑KURDISH OPPOSITION IN PATRIOTIC UNION OF KURDISTAN (PUK) AREAS ARE IN DANGER OF ATTACKS FROM THE IRANIAN SECURITY FORCES WHO HAVE INFILTRATED THE AREA.  IT IS IMPOSSIBLE FOR THEM TO SETTLE IN THE KURDISH DEMOCRATIC PARTY (KDP) REGION.”

19                  The submission was that, in failing to make an explicit finding about those two pieces of evidence in the section of its reasons dealing with the appellant’s claim to be a refugee sur place, the Tribunal failed to comply with s 430(1)(c).  The Tribunal had, however, earlier in its reasons referred to a considerable volume of independent evidence, including both the facsimile and the report.  Indeed it quoted the facsimile in full and accurately and fully paraphrased the passage in the report on which the appellant relies.  Among the material referred to, however, there was some (including recent material) which supported the conclusion to which the Tribunal came.  The Tribunal referred to certain of that material as supporting its conclusion.  Consistently with principle and authority, it was not obliged to state explicitly why it rejected, or placed less weight upon, the two items on which the appellant relies.

(b)        THE PUK LETTER

20                  The appellant correctly points out, as we have mentioned, that the letter is not mentioned in the Tribunal’s reasons.  We have been provided with a copy of the transcript of the hearing before the Tribunal.  There is a brief reference only to the PUK letter, fairly described by counsel for the appellant as a passing reference.  It occurred in the course of some submissions made by the appellant’s adviser.  The adviser said:

“Second thing that he is a member of the PUK.  I’ve been approached by the leadership of the party here and they asked me to try to represent him and they wrote him a letter of support asserting that he is a member of the PUK.”

The Tribunal Member responded, “Yes, I think I’ve got that on the file” and the adviser, before proceeding with other matters, said “Yes, sir, you have that.”

21                  We are, of course, in no position to speculate about what consideration, if any, the Tribunal gave to the PUK letter or, if the Tribunal consciously rejected or gave little weight to the letter, on what grounds it did so.  It is perhaps uncontroversial to say that it would have been better had the Tribunal referred to the letter, as it referred to the other documents which the appellant produced.  To say that, however, does not answer the question whether the Tribunal, by not referring to the letter, failed to comply with s 430(1).

22                  The letter might have been regarded particularly as supporting the appellant’s claim to have been a peshmarga and also to have offered some corroborative support to other aspects of the appellant’s claims.  But the Tribunal made a finding on the question of fact, whether the appellant was a peshmarga, and made findings also about the other questions of fact to which the letter might have been relevant.  In each case, the Tribunal referred to evidence which (in its view) supported its finding.  Contrary to a submission by counsel for the appellant, it is not sufficient, to establish breach of s 430(1), to show that the Tribunal was not “alert to the existence and contents” of the PUK letter (Singh at par 60).  (In fact, the passage in the transcript indicates that the Tribunal was aware of the existence of the PUK letter).  After quoting with approval the passage from Addo, approved also in the majority judgment in Singh at par 52, McHugh J said in Durairajasingham, at 416 (par 65):

“However, the obligation to set out ‘the reasons for the decision’ (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.  Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons.  But that said, it is not necessary for the Tribunal to give a line‑by‑line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal.”

Whether the appellant was a peshmarga was, as the Tribunal dealt with the matter, plainly a material fact on which a finding was required.  There was a good deal of evidence bearing on that question, and the Tribunal referred to much of it.  The PUK letter cannot, in that context, be regarded as so crucial to that material question of fact that the Tribunal was required to state whether or not it accepted the PUK letter as reliable.  In that regard it is significant that the letter does not disclose the source of, or basis for, its assertions and, although the author stated he was prepared to give evidence, he was not among those called by the applicant to give evidence.

23                  In short, we would, in our view, be departing from the principles recently affirmed in Singh if we were to hold that the Tribunal had failed to comply with s 430(1) as alleged.

CONCLUSION

24                  For the reasons we have given, the appeal is dismissed.  The appellant must pay the Minister’s costs of the appeal.

Associate:

Dated:              21 September 2000