MIGRATION - Refugee status - Tribunal's decision vitated by legal error - interpretation of "refugee" - reviewable error by failure to assess all sources of alleged persecution against the "real chance" test - where test not applied to applicants' particular circumstances as apostates - religious conversion also ignored when determining prospects of State protection - consideration of "no evidence" ground in relation to inessential findings of fact
CONSTITUTIONAL LAW - Whether Tribunal's decision ultra vires because it involved an exercise of judicial power
Migration Act 1958 ss 5(1), 36(2), 476(1)(e), 476(1)(g), 476(4)
Administrative decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(h), 5(3)
Judiciary Act 1903 (Cth) s 78B
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Refd to
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Cited
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Cited
Chan Ru Mei v The Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405 Cited
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 Refd to
Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 Cited Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 Cited, Refd to
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 Approved, Refd to
Soare v Minister for Immigration and Multicultural Affairs  FCA 1127 Approved
The Attorney-General of the Commonwealth v Breckler  HCA 28 Refd to
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 Refd to
WALID ABU MARSHOOD AND KADIJEH WALID ABDALLA MARSHOOD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 377 of 1999
15 OCTOBER 1999
BRISBANE (Heard in Sydney)
ON REVIEW FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL
WALID ABU MARSHOOD AND KADIJEH WALID ABDALLA MARSHOOD Applicants
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
THE COURT ORDERS THAT:
1. The decision be set aside.
2. The matter be remitted to the Tribunal for further consideration according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
ON REVIEW FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL
WALID ABU MARSHOOD AND KADIJEH WALID ABDALLA MARSHOOD Applicants
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
REASONS FOR JUDGMENT
1. The applicants, citizens of Jordan, seek review of the decision of the Refugee Review Tribunal of 24 March 1999 affirming the decision of the Minister's delegate not to grant them protection visas. These proceedings were brought in the name of Mr Marshood, but the Minister has no objection to Mrs Marshood being named as an applicant.
2. The basis for the applicants' claim to refugee status as defined by Article 1A(2) of the Convention relating to the Status of Refugees (as amended by the 1967 Protocol relating to the Status of Refugees), which is a criterion for a protection visa: (see ss 5(1) and 36(2) Migration Act 1958 (Cth)), is their fear of persecution, on the basis of their conversion from Muslim to Christian beliefs. They believe that their lives will be in peril because of their violation of Muslim laws against apostasy. The threat will come from non-government extremist groups and from relatives of Mr Marshood. The Tribunal weighed the applicants' assertions against information provided by Jordanian and expatriate Christians, and the independent reports of human rights experts. It accepted the applicants' conversion and their subjective fear of persecution as genuine, but did not consider the fear to have reasonable foundation. In particular, it considered that the government of Jordan would provide protection.
The Tribunal Decision
3. The Tribunal noted Mr Marshood's belief that the penalty for apostasy, under Islamic law, is death. He feared that the government could not protect him from extreme Islamists. His brother Adeeb was such an extremist, and with his sons was a member of the Muslim Brotherhood. Mr Marshood's children respected his conversion and would cause no problem, but he feared attacks to himself and his wife from his brother and nephews. His children had warned him not to return to Jordan on this account.
4. The Tribunal referred Mr Marshood to aspects of the independent evidence available to it, which suggested that the government would make efforts to protect them. He stated that there is generally freedom of religion, but in the case of a Muslim renouncing Islam, the government may or may not take action. He took issue with the suggestion that the Muslim Brotherhood was a peaceful organisation and said that they were violent and likely to abduct him, or even worse. He said that the group Hamas was even more extreme. He did not consider the government would be likely or able to protect him. Mrs Marshood's evidence was to similar effect.
5. Following the hearing, further written submissions were provided by the applicants in which it was said that the applicants' main fear of persecution was from fundamentalist Islamic groups and from vengeful relatives who thought it was their duty to punish them, rather than the government. The government, however, would be unable to protect them.
6. The independent evidence before the Tribunal included a Country Information Report. It advised that, whilst conversion to Christianity is a violation of Islamic Sharia law, such cases are not pursued by the Jordanian government against local converts. Secondly, the Muslim Brotherhood in Jordan is considered to be a peaceful organisation. It and its related political party are legal in Jordan. It is not generally associated with the violent or extremist action, executed in the name of Islam, with which other "Muslim" groups in different countries may be linked.
7. I shall set the next reference out in full:
"3. This tends to suggest that Brotherhood members, whilst they would reject the individual's decision to convert, would be unlikely to react violently. Another reason for this is that if there were such a violent reaction and government security forces became aware of it, the government response against the Brotherhood would be severe. (That said, the local police do not always uncover the true motivation for all crimes committed).
8. Additional information available to the Tribunal concerned the level of tolerance for non-Islamic religious activities in Jordan. Because of the focus upon non-government groups, and individuals, as the source of violent reaction, this does not assume much further importance. (Another aspect of the advices, which refers to governmental discrimination in housing and employment, I will refer to separately).
9. Other information concerned the present status of the other Islamic organisations. They included reports that Jordan had reacted to a criticism by the Israeli Prime Minister that Hamas (the Islamic Resistance Movement) was permitted to operate from Jordanian territory, by issuing warnings to Hamas and questioning a few activists. Later, the government warned a Hamas spokesman not to issue statements supportive of anti-Israeli violence, and that such conduct would violate a Jordanian law which had been used to expel two senior Hamas leaders (Non-Jordanian citizens) for making inflammatory statements against Israel. The World Refugee Survey stated that:
"Supporters of Hamas, the Palestinian Islamic Resistance movement, which opposed the peace accord between Israel and the PLO, remained relatively quiet in Jordan during the year, despite their obvious displeasure with the direction in which the King was going. The Hamas position was supported by the Muslim Brotherhood, an Islamic movement that has strong roots in Jordan and represents a bloc of 16 in the 80-member Jordanian parliament."
And another source reported:
"Jordan has started its own campaign against the radical Islamists as part of a concerted US-backed regional campaign against the Palestinian opponents of the peace process. Scores of suspected Hamas activists in the country were rounded by the security services almost immediately after the Sharm al-Shaikh summit, where security representatives from the US, Jordan, Israel, and the PNA met to coordinate regional moves against the Islamists."
10. The Department of Foreign Affairs and Trade advised that the Jordanian Ministry of the Interior keeps the Hamas office under close scrutiny. Independent evidence also confirmed that the leaders of another Islamic group in Jordan, the Liberation Party, testified at a trial that whilst it sought the re-establishment of an Islamic state encompassing Jordan, it did not advocate violence in pursuit of its aims. It went on, however, to note that the Jordanian authorities had often maintained that that Party was a violent organisation, but that no evidence had been produced by them to support the claim.
11. The Tribunal discounted the likelihood that the applicants might be persecuted by the Jordanian government. It then turned to the question whether effective protection by the Jordanian government was available for the applicants. In this respect, Article 1A(2) of the Convention defines a refugee as a person who: "is unable or, owing to such fear [of persecution], is unwilling to avail himself of the protection of that country [of his nationality] ...". One issue on this application concerns the Tribunal's reasoning that protection was available from Jordan; and whether the persecution feared was officially tolerated or unable to be controlled by the authorities of that country: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 233. If such protection were available, intervention and protection would not be needed and the person would not be a refugee.
12. The Tribunal accepted the observation made by the applicant's adviser, that "there is little independent evidence regarding treatment by Islamic groups in Jordan towards apostates, or the response of the Jordanian government to persons who are harmed for reasons of their apostasy". It went on:
"What evidence there is, however, suggests that both the Muslim Brotherhood and the Liberation Party (ILP) in Jordan are considered to be peaceful organisations. Unlike in some other Arab countries, the Muslim Brotherhood and its related political party - the opposition Islamic Action Front - is legal. While advocating an Islamist Jordan, the brotherhood is generally not associated with the type of violent or extremist actions in the name of Islam with which other "Muslim" groups in different countries (eg Egypt) may be linked. This tends to suggest that Brotherhood members, whilst they would reject the individual's decision to convert, would be unlikely to react violently. The Islamic Liberation party has specifically described itself as not advocating violence.
With regard to Hamas, although they have an office in Jordan, the Tribunal notes that according to independent evidence, they have not hesitated to expel from Jordan members of Hamas who have advocated violence (in this case, against Israel). And a number of Hamas members have been arrested in Jordan in the past if they are suspected of carrying acts of terrorism. The independent evidence also suggests that the prime target of Hamas, rather than Jordanian apostates, is Israel and Israeli citizens.
The Tribunal cannot be satisfied that the applicants' fear of being treated violently by Islamic groups in Jordan is well founded and is supported by the independent evidence which suggests firstly, that the two main groups which the applicants' claim to fear - the Islamic Liberation Party and the Moslem Brotherhood, in Jordan, do not advocate violence, and secondly, in the case of Hamas, the Jordanian authorities have moved to arrest and expel those members of Hamas that have been involved in acts of violence. The Tribunal is satisfied from the independent evidence that the chance of the applicant being harmed by the Moslem Brotherhood or Islamic Liberation Party is remote and insubstantial, and in the case of Hamas, even if the applicants were to be threatened with harm, or actually harmed in some way, the Jordanian authorities would offer the applicants protection against this harm.
The Tribunal cannot therefore be satisfied that the applicants' fear of persecution by Islamic groups in Jordan is well founded."
13. Similar findings were reiterated by the Tribunal when it went on to consider the possibility of harm from the male applicant's brother and nephews, because of their being members of the Muslim Brotherhood or of Hamas. It found that the Brotherhood was non-violent and the chance of harm from it "remote and insubstantial". It went on to say that in the "remote chance" of harm being inflicted, the independent evidence suggested that the Jordanian government's response would be "severe". Protection was also considered by the Tribunal to be available to the applicants against "the harm they fear by Hamas" because the government had taken action against Hamas in the past.
Grounds for Review
14. Of the limited grounds which are available with respect to a decision of the Tribunal, the two identified in the application and which appear to have possible application are: error of law being one involving an incorrect interpretation of the law and its application to the facts (s 476(1)(e)); and lack of any evidence to justify the decision (s 476(1)(g)).
15. The firstmentioned ground arises in connexion with the requirement, in the definition of "refugee", that the fear of persecution be well-founded. A proper approach does not require a decision maker to assume (in credible cases) that there is a well founded fear of persecution unless the facts negate it: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, 574. Rather, if it is accepted that an applicant has a genuine fear; the decision maker is to consider whether there is a real chance that the individual will be persecuted if required to return, which is to say that there is a substantial, as distinct from a remote, chance of persecution occurring: Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 389. The task does not involve weighing the prospect of an occurrence as a matter of likelihood, but to assess whether the fear is "well-founded" in the sense described above: Chen Ru Mei v The Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405, 410.
16. Here the Tribunal has used the words "remote and insubstantial" to describe its view of the applicants' fears, but the deployment of the correct words and the criteria of appropriate passages for the cases are not conclusive. It is necessary to scrutinise the reasoning to determine whether the correct approach was taken: see Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402.
17. The Tribunal was required to come to a view, as to whether there was a real chance of persecution, on a review of all of the available and relevant evidence. In this case, however, the independent evidence suggested that the three organisations were to be viewed separately, as possible sources. The Muslim Brotherhood was considered an unlikely source of violence. The prospect of the Liberation party acting in such a way, whether it be to the extent of a real chance or a likelihood, was not addressed. Hamas appears to have been treated as a possible source, but was discounted on the basis of available state protection. I shall deal with that aspect later. Neither with respect to the Brotherhood and the Liberation party did the Tribunal address the question whether there was a "real chance" of persecution from these sources. So far as concerned the Brotherhood, a finding that it was unlikely as a source, does not conclude the question whether there is a real chance violent action might be taken by its members.
18. Aspects of the Tribunal's approach to reasoning confirm my view that the necessary question was not addressed. So far as concerned the two groups mentioned above, it might be thought that at other points in its reasons the Tribunal had answered the question, whether there was a basis for the applicants' fear, by simply accepting that those groups generally did not advocate violence. That may have provided a starting point, but also it nowhere after appears that it took the matter further and addressed the question whether there was a "real chance" of persecution. To do so would have required it, in this case, to consider what the evidence of general reputation told it about whether violence might be shown towards people in the applicants' situation.
19. Any consideration of whether there was a "real chance" necessitated a consideration of the applicants as apostates. This was not undertaken. And with respect to the Liberation party the "chance" of violence from that source, if it had been addressed, would have required some consideration of the competing claims of the group itself and the authorities as to the group having taken violent action. The overall enquiry which presented itself in this case, whether there was a real and not remote chance of persecution when regard was had to the number of possible sources, not only of groups but also individuals holding the view that apostasy required severe penalties, was not addressed. I am not here concerned what weight ought to be given to these factors, what inferences may be drawn, nor to determine whether the independent evidence available permitted a conclusion to be reached. Rather, a lack of consideration of these topics or further questions itself suggests that the correct question as to risk of persecution was not applied to the evidence. It follows, in my view, that the ground of error of law in s 476(1)(e) has been made out.
20. The applicants' grounds for review also include reference to there being no evidence that the two organisations referred to above would not harm the applicants and identify s 476(1)(g). Neither this ground nor that I have just dealt with was substantially developed at the hearing, reliance principally being placed upon the constitutional point, to which I shall later refer. The "no evidence" ground in s 476(1) is however substantially circumscribed by s 476(4), which is in these terms:
"(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."
These provisions have a parallel in subs (5)(1)(h) and subs 5(3) Administrative Decisions (Judicial Review) Act 1977 (Cth).
21. Subsection (4)(a) requires that the statute in question, either expressly or impliedly, makes the decision depend upon a particular matter being established: Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414, 429; Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147. The "matter" cannot be the criterion in s 36(2) and subclass 866.221 of Schedule 2 of the Migration Regulations 1994, namely whether the applicants are persons to whom Australia has protection obligations under the Refugees Convention. It is speaking of statutory preconditions, not the ultimate conclusion. It is in the nature of a condition upon which the exercise of the decision making power depends: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, 606.
22. The finding by the Tribunal, that the groups in question did not pose a threat of violence to the applicants, was one critical to the question of whether this fear of persecution was well founded and therefore to the ultimate question. It is therefore a "particular fact" to which par (b) of subs (4) may refer: see Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, 220-221. The difficulty however is that the Court must be in a position to conclude not just that there was an insufficiency of probative evidence to support that conclusion, but that it was incorrect. As the cases show, that will often require the calling of evidence to establish that. It is not possible to come to such a conclusion in this case (see Television Capricornia Pty Ltd v Australian Broadcasting Tribunal at 156, as applied in Curragh Queensland Mining Limited v Daniel at 223 per Black CJ with Spender and Gummow JJ concurring).
23. As earlier mentioned, the Tribunal appears to have accepted that there was the necessary risk of violence from Hamas. It held, however, that State protection would be available for the applicants. The Tribunal reasoned that it could be said to be available because the authorities had acted against Hamas on prior occasions. I take it that that conveyed to the Tribunal that Hamas and its activities were not officially tolerated by the authorities, so that protection which might normally be afforded citizens would be given (Applicant A, 233). What it failed to take account of was that the independent evidence spoke only of the government taking action where the subject was Israel and the negotiations were for peace, quite a different context and presenting a different motivation than the situation involving religious converts. That is to say, the Tribunal has determined whether the authorities would act against Hamas if it were taking action against Israel or its citizens; but not the question which needed to be addressed, whether action would be taken if Hamas acted against apostates. The Tribunal accepted that there was a real chance of violence from members of that group. The question posed by the definition in the Convention, as to whether the protection of Jordan was available, must be understood to refer to protection against the identified and apparently credible persecution feared, here with respect to violence from Hamas to the group to which the applicants belonged. Protection in relation to apostates was not addressed. It again follows, in my view, that there has been an incorrect application of the law to the facts.
24. There remains the question whether the other ground, in s 476(4)(b) might apply to the issue concerning State protection. The same difficulty referred to above however arises. Whilst one would conclude under the general law that there was no prohibitive evidence to support the conclusion reached, it could not be said that a conclusion can now be reached that the question relating to the State's toleration was incorrect.
25. The constitutional argument raised by the applicants, in its various forms, depends upon the Tribunal having exercised the judicial power of the Commonwealth. Notice of the questions was given. The argument has already been canvassed before Tamberlin J in Soare v Minister for Immigration and Multicultural Affairs  FCA 1127. His Honour considered that the indicia of judicial power to which Kirby J referred in The Attorney-General of the Commonwealth v Breckler  HCA 28, were not present and that, most importantly, the Refugee Review Tribunal did not have the power to enforce its decisions or carry them into effect. I respectfully agree.
26. The applicants also sought to raise an argument concerning the exercise of the executive power pursuant to s 51(xix) of the Constitution (the "aliens power"), but it too depended upon the Tribunal exercising judicial power. It did not seem to me that any question as to the validity of the Migration Act was raised, despite the concerns expressed by Counsel for the respondent. Such a question was not identified in the notices required by s 78B Judiciary Act 1903 (Cth).
27. The ground for review referred to in s 476(1)(e) has been made out on two bases: the Tribunal did not apply the question, whether there was a real chance of persecution, to the evidence available and it did not ask whether the protection of Jordan was available with respect to the persecution which the applicants feared. The decision should be set aside and the matter remitted to the Tribunal for further consideration according to law. I will hear submissions on costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.
Dated: 15 October 1999
Counsel for the Applicant: Mr R Killalea
Solicitor for the Applicant: Samir's Multiculture Legal Services
Counsel for the Respondent: Mr G Johnson
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 20 September 1999
Date of Judgment: 15 October 1999
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