Mubarak v Minister for Immigration & Multicultural Affairs [2000] FCA 193 (1 March 2000)

Last Updated: 2 March 2000

FEDERAL COURT OF AUSTRALIA

Mubarak v Minister for Immigration & Multicultural Affairs

[2000] FCA 193

KHEDIR AWAD NASSER MUBARAK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 38 OF 2000

MOORE J

1 MARCH 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	N 38 OF 2000

BETWEEN:	KHEDIR AWAD NASSER MUBARAK Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE J
DATE OF ORDER:	1 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is 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.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	N 38 of 2000

BETWEEN:	KHEDIR AWAD NASSER MUBARAK Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE J
DATE:	1 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Nature of present application

1 This is an application by Khedir Awad Nasser Mubarak ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 11 January 2000. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention").

Background

2 The applicant arrived in Australia on 14 April 1999, having travelled from Jordan via Egypt. He entered Australia using a Saudi Arabian passport that had been tampered with. On 30 April 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 18 May 1999 the application was refused by a delegate of the Minister, and on 20 May 1999 the applicant sought review of that decision. Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee. Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides:

"... the term "refugee" shall apply to any person who;

...

(2) owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it."

Proceedings before the Tribunal

3 The essence of the applicant's case before the Tribunal was that he will be subjected to persecution if forced to return to Jordan, Iraq or Kuwait because he is a stateless Bedoun who has been persecuted in Kuwait and has resided illegally in Iraq and Jordan. The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and a consideration by Australian courts of what is comprehended by the definition of "refugee" and by the notion of "persecution". Reference was made to the judgments of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, Applicant A v MIEA [1997] HCA 4; (1997) 190 CLR 225 and MIEA v Guo [1997] HCA 22; (1997) 191 CLR 559. The Tribunal then noted that Australia does not owe protection obligations to a person who has been accorded effective protection in a third country, referring to Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 151 ALR 685 and Karthigesu Rajendran v Minister for Immigration and Multicultural Affairs [1998] FCA 464. The Tribunal stated:

"Effective protection in this context is protection which will effectively ensure there is not a breach of Article 33 of the Convention which prohibits the return of a refugee to the frontiers of territories where his or her life or freedom would be threatened for one of the five Convention reasons. [...] 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 his or her country of nationality; and whether the applicant has a well-founded fear of persecution in the third country itself."

4 The Tribunal considered the circumstances of the applicant as described by him in a section headed "Claims and Evidence". The Tribunal first noted that the applicant's claims were set out in an interview with an Immigration Officer at the airport, in written submissions to the Department, in an interview with an officer of the Department, unwritten submissions to the Tribunal and in oral evidence given to the Tribunal. The Tribunal then set out what emerged from that material which can be briefly summarised.

5 The applicant was born in Kuwait in 1949. He lived there with his wife and children from 1972 to 1990, and was employed as a traffic controller. The applicant claimed he was not a Kuwaiti citizen, but a stateless Bedoun. During the Gulf War, the applicant went into hiding in Kuwait. At the conclusion of the war, the applicant claimed "the Kuwaitis began to persecute the Bedoons with a vengeance", because the authorities believed the Bedouns who remained in Kuwait during the war were allied with Iraq. The applicant was dismissed from employment, his family lost numerous entitlements such as housing, health and education, and he was detained by the Kuwaiti authorities. The applicant said he had no choice but to leave Kuwait.

6 The applicant claimed that he and his family entered and settled in Iraq illegally. He said they lived unknown to the Iraqi authorities near the city of Al Nasiriyah. He said they entered with US $12,000 - 15,000, did not work there, and did not resolve their status with Iraqi authorities because they feared Iraqi authorities would consider an ex-policeman from Kuwait as a spy. He said they occupied the house of man who provided them with food for US $100 per fortnight, and who threatened to report them to the authorities if they did not pay regularly. He said they left Iraq after five years because they had nothing and could not work there. The applicant claimed that he and his family then entered and lived in Jordan illegally. After a period in Jordan, the applicant proceeded to Cairo, procured a Saudi Arabian passport, and travelled to Australia.

7 The Tribunal considered the applicant's evidence and claims in a section in its reasons titled "Findings and Reasons". The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

8 The Tribunal accepted that the applicant was not a Kuwaiti citizen, and accepted, in broad terms, the applicant's account of his experiences in Kuwait following the return to power of the Kuwaiti Government after the Gulf War. However, the Tribunal did not accept that the applicant was being persecuted because he was a Bedoun. Rather, the Tribunal found that following the Gulf War the Kuwaiti Government embarked on a process of determining which Kuwaiti residents had nationality rights. The Tribunal found that the applicant was in fact not a stateless Bedoun, but an Iraqi citizen, or a person with nationality rights in Iraq. Consequently, the applicant was forced to leave Kuwait. The Tribunal accepted that this expulsion caused the applicant hardship, but found that it did not come within the ambit of the Convention.

9 The Tribunal rejected the applicant's claim that he entered Iraq clandestinely and lived there illegally for five years. The Tribunal noted that the applicant had given inconsistent accounts of his entry into Iraq, the applicant having stated in a written statement, prepared with the assistance of a solicitor, that he entered before his family, "disguised as a Bedoon", and having later claimed in a departmental interview to have driven into Iraq with his family. The Tribunal found that this inconsistency could not be dismissed as a memory lapse or interpreting error and that the applicant had fabricated the former account. The Tribunal also noted that the Iraqi authorities closely monitored both arrivals from Kuwait after the Gulf War and also the area in which the applicant settled, which had been the site of an uprising against the Hussein regime some months before the applicant's arrival. The Tribunal further noted that Iraqi citizens were required to report unusual events at risk of punishment for concealing new or illegal arrivals. The Tribunal consequently rejected as implausible the applicant's claim that he had paid someone to allow his family to stay in that person's home undetected. In summary, the Tribunal found that the applicant entered Iraq with ten members of his immediate family and settled near the city of Al Nasiriyah with the knowledge of the Iraqi authorities. Thereupon, the Tribunal found, that the applicant and his family were recognised having nationality rights and obtained Iraqi passports.

10 Having found that the applicant was an Iraqi national, the Tribunal considered whether the applicant had a well-founded fear of persecution in Iraq. The Tribunal reiterated that the applicant had lived in Iraq for five years with the Iraqi authorities' knowledge and without being harmed, and the applicant had an Iraqi passport. The Tribunal concluded that the applicant did not face "any prospective harm amounting to persecution in that country in the reasonably foreseeable future."

11 The Tribunal then considered the applicant's departure from Iraq and entry and settlement in Jordan. The Tribunal considered that the applicant had "not been frank about his location in Jordan or his status in that country". The Tribunal expressed reservations, "[g]iven the applicant's lack of candour", about whether the applicant left Iraq with or separately from his family, but stated the Tribunal's conclusion did not depend on the resolution of this question. The Tribunal found that the applicant and his family had used their Iraqi passports to obtain permission to reside in Jordan. The Tribunal found that the applicant's family continued to hold the applicant's passport in Jordan. Finally, the Tribunal found that Jordan would offer the applicant effective protection were he to return there.

The Application for Judicial Review

12 The applicant was unrepresented in these proceedings. His application for judicial review recites the grounds of review set out in s 476(1)(a) and (e) of the Migration Act 1958 (Cth). There was a third ground that:

"The Tribunal member refused to accept that the applicant has a well founded fear of persecution on convention reasons."

13 When the matter first came before the Court the applicant indicated in clear terms that he wanted his application to be dealt with expeditiously. It appeared he was distressed as a result of having been in detention for a lengthy period.

14 I have read the reasons of the Tribunal. I have also read the written submissions of the Minister which, in substance, seek to defend the Tribunal's decision on what might be anticipated to be grounds upon which the applicant might rely. The fundamental difficulty the applicant confronts is that the Tribunal simply did not believe significant aspects of his account of events following his departure from Kuwait. The Tribunal's finding of fact that he was a citizen of Iraq was open on the material before it. This material included both independent country information and facts known to the Tribunal relating to the personal circumstances of the applicant, including concessions the applicant made concerning his time in Iraq and departure from it. The applicant was represented by a solicitor before the Tribunal and there is nothing to suggest in the Tribunal's reasons that it did not consider material put to it nor is a suggestion made to that effect in the application for review.

15 Not only was it open to the Tribunal to conclude that the applicant was an Iraqi citizen but it was also open to it to conclude that there was no real risk of persecution were the applicant to return to Iraq. That latter conclusion was based, in part, on its findings about the manner in which the applicant and his family had lived in Iraq for the five years they were there. Having reached these conclusions the Tribunal was entitled to conclude that the applicant was not a person to whom Australia had protection obligations.

16 It is to be recalled that the Tribunal approached the matter on an alternative basis. That is, it concluded that Jordan would offer the applicant effective protection were he to return there. During the hearing in this court, the applicant handed up a letter addressed to Mr Simon Jeans of the Legal Aid Commission of New South Wales. The letter dated 21 January 2000 was from the Embassy of the Hashemite Kingdom of Jordan. It read:

"In reference to your letter dated 18 January 2000 regarding the right of return of Kuwaiti National previously in Jordan, I would like to inform you that:

1. The Jordanian regulations and rules require a valid passport and not any type of travel documents to enter Jordan only as a tourist.

2. For any person to reside in Jordan, the rules require him to be either a Jordanian citizen or a person who obtained working permission in Jordan.

Therefore any applicant who doesn't obtain the above mentioned requirements will not be entitled to enter Jordon. If you have any further queries in relation to this matter please do not hesitate to contact me."

17 Even proceeding on the assumption that material such as this may be received in evidence in judicial review proceedings, which ordinarily it cannot, it is no answer to the principal conclusion of the Tribunal that the applicant is an Iraqi citizen and does not have a well founded fear of persecution were he to return to Iraq. Moreover the Tribunal made a finding that the applicant possessed an Iraqi passport that could be used to re-enter Jordan.

18 Accordingly I am not satisfied any ground of review is made out. I dismiss the application with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore .

Associate:

Dated: 1 March 2000

The Applicant appeared in person.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 February 2000
Date of Judgment:	1 March 2000