Baban v Minister for Immigration and Multicultural Affairs [2000]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1121 OF 1999

BETWEEN:

HEMAN OMAR SHARIF BABAN APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 12 APRIL 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

NEW SOUTH WALES DISTRICT REGISTRY

N 1121 OF 1999

BETWEEN:

HEMAN OMAR SHARIF BABAN APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE: WHITLAM J

DATE: 12 APRIL 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

1. The applicant is an Iraqi national of Kurdish ethnicity. He seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 6 September 1999 affirming the decision of the respondent's delegate not to grant him a protection visa.

2. The Tribunal prepared a statement under s 430(1) of the Migration Act 1958 ("the Act"). In a section headed "Findings and Reasons", it stated:

"The applicant claims to fear harm from the Iraqi authorities and the KDP [Kurdish Democratic Party]. He claims the Iraqi authorities learned of his leading role in the PUK [Patriotic Union of Kurdistan] 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.

I am not satisfied that the applicant is known to or wanted by the KDP. He claims the KDP made allegations against him as early as May 1997 and bombed his father's house in February 1998. However, he travelled through KDP controlled areas of northern Iraq, including the KDP checkpoints leading to and at the Turkish border using his civil status ID card in his real name. I find it implausible that he would attempt to or could pass such security checks using his real identity if wanted by the KDP. I am not satisfied that the applicant is known to or wanted by the Iraqi authorities. He claims he and two PUK colleagues travelled to Iraqi controlled Kirkuk on a bus with a soccer team. He claims they were on a mission to distribute PUK pamphlets. At first his description of the pamphlets was expansive. He stated they contained news articles and photographs and were of 2 or 3 pages. However, as it became obvious that the ability to transport a large number of such pamphlets on a bus, through several searches of the bus at Iraqi checkpoints, would be an issue, the applicant appeared to down-play the pamphlets, describing them as one page documents of which only 100 were carried. When asked how they avoided detection on the searches, he said they were hidden in the various items of luggage, not all of which were searched. The written claims described a rather more thorough search procedure. When asked why three PUK members were tasked to distribute 100 pieces of paper the applicant said someone was needed to inspire the people however when asked if someone did do that, he was vague and evasive and did not directly answer the question. I gained the clear impression he was not telling the truth. I find it implausible that a busload of young men, from PUK controlled Suleimaniya, could pass through several Iraqi security checkpoints en route to Kirkuk, without the most stringent of security searches of their vehicle and possessions. I find it implausible that a member of a well-known PUK family, already the subject of threats from the KDP could pass through these security checks using his real civil ID card. I am prepared to accept the applicant did travel with a soccer team to Kirkuk, however, I do not accept he was on a PUK mission and I am satisfied that the journey is evidence of the fact that the applicant is unknown to the Iraqi security authorities.

I accept that the applicant comes from PUK controlled Suleimaniya. I accept he is a supporter of the PUK. I do not accept he is a peshmarga of the PUK. There is independent evidence that such peshmarga have PUK ID cards. The applicant said he had one but left it in Suleimaniya because he didn't think to bring it with him. I do not accept that. I find it implausible he would carry both his civil ID card and an original arrest warrant but not bring his PUK ID card. I accept that most Kurdish citizens of Suleimaniya are supporters of the PUK. I accept that witness K is a former neighbour of the applicant and that both may have been involved in pro-PUK meetings and demonstrations, however I am not satisfied that this activity brought the applicant to the notice of either the KDP or the Iraqi authorities. I do not accept the evidence of witness R that the applicant was known to him from meetings with the PUK leader. I find it implausible that the PUK leader's chief bodyguard would not know the applicant's father if he had the high-profile background as claimed. I am not satisfied the applicant had a leading or high profile role in the PUK. I am not satisfied that he is known by or of adverse interest to either the KDP or the Iraqi authorities.

As to the question of sur place claims, there is a degree of variation in the independent evidence about the likely treatment of returnees by the Iraqi authorities. It seems that returnees are likely to be questioned. However, there is recent evidence of an amnesty for Iraqis who left illegally and the KDP have called for all Kurds regardless of previous political affiliation to return without fear of retribution. I am satisfied from the independent evidence that the treatment of returnees will depend upon their particular facts, personal circumstances and history. The applicant claims to have left Iraq illegally and to have no travel documents. It seems clear from the evidence that any form of documentation can be obtained for a price in Iraq and surrounding countries and that hundreds of thousands of people have left the country in recent years. However, the applicant used an Iraqi passport to cross the Turkish border whilst carrying ID cards in his real name and I am satisfied that his passport must have been in the same identity. I am not satisfied he left illegally. There is independent evidence that thousands of Kurds have been repatriated into northern Iraq and that Iraqi Kurds can pass back into northern Iraq via the Turkish border. There is also evidence of considerable daily cross-border traffic of Iraqis returning to Iraq from Jordan. In short, there is substantial evidence that Iraqis can and do return to Iraq. I am not satisfied that being a returnee per se is likely to give rise to a well founded fear of harm for a Convention reason.

I am conscious of the horrendous record of human rights abuses by the Iraqi regime and of the violence between the PUK and KDP Kurdish political factions. However, on the evidence I am not satisfied that the applicant is of adverse interest to the Iraqi authorities, the KDP or any other organised group. I am not satisfied the applicant has a well-founded fear of persecution for political or any other Convention related reason."

3. The applicant relies solely on the ground of review specified in s 476(1)(a) of the Act. He submits that the Tribunal's statement does not comply with pars (c) and (d) of s 430(1). However, in my opinion, the Tribunal's written statement of reasons is not reviewable pursuant to s 476(1)(a): Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 at 624-631. The application cannot thus succeed.

4. Specifically, the applicant complains that the Tribunal made no reference anywhere in its statement to a letter he obtained from the PUK in Australia after he arrived here. This letter was said to confirm that he was a peshmarga of the PUK and to substantiate his claims in respect of the Iraqi authorities and the KDP. The applicant also says that, in making it findings on his sur place claims, the Tribunal was obliged directly to address at that very point in its statement the observations in two reports that it had earlier noted in the material before it concerning the return of unsuccessful asylum seekers to Iraq.

5. There is some authority for the proposition that s 430(1) requires the reasons of the Tribunal to refer to evidence inconsistent with the findings of the Tribunal. However, in my opinion, the contrary view expressed in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] and [31] is to be preferred: Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740. The view of the Full Court in Addo has since been approved in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405. It follows that I regard the applicant's reliance on s 430(1) as entirely misplaced.

6. The application will be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 12 April 2000

Counsel for the applicant: N.C. Poynder

Counsel for the respondent: J.D. Smith

Solicitor for the respondent: Australian Government Solicitor

Date of hearing: 10 November 1999

Date of judgment: 12 April 2000