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[2002] FCAFC 21
Federal Court of Australia (Full Court)
2002-01-01
Heerey J, Emmett JJ, Drummond J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 DRUMMOND J: This is an appeal from a decision of Heerey J dismissing an application for review under s 476 the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal ("the Tribunal") refusing the appellant a protection visa. The decision was given on 26 June 2001. To be in time, the appellant's notice of appeal should have been filed by 17 July. It was not filed, according to the Court's records, until 6 August, although the original notice of appeal does bear what appears to be a Court facsimile receipt dated 31 July 2001. 2 The Minister objects to the appeal being heard unless the appellant can obtain the necessary extension of time from the Court for the filing of his late notice of appeal. The first of the issues relevant to whether the extension of time should be granted is whether there is an acceptable explanation for the delay. No notice challenging the competency of the appeal was filed by the Minister. 3 The appellant is in detention and is not legally represented. The first indication he could therefore have had that the point would be taken was when the Minister served him with the statement of argument a couple of days before this hearing. When asked about the delay, the appellant told this Court he took action to file his notice of appeal within two weeks, ie, within either two weeks of receiving Heerey J's written reasons or within two weeks of the actual judgment itself being pronounced. Given the late raising of the objection to the competency of the appeal, the Court is now in a situation where, for practical reasons, it is unable to form a view on whether there may be good reasons for the delay. 4 The second issue governing whether the extension of time should be granted is whether the appeal has sufficient prospects of success to justify extending time for appealing. In the circumstances, if this is the case, it would be appropriate, in my view, to grant the extension of time. 5 The notice of appeal, however, does not identify any ground for questioning the correctness of Heerey J's decision. Despite this, I have examined the judgment and also the reasons of the Tribunal to see if there may be any basis for challenging Heerey J's decision. It is appropriate to refer to the Tribunal's statement of relevant facts and to what the appellant had to say in his own written statement which he gave to the Tribunal. 6 The appellant is a stateless Palestinian born in 1969 in Syria to Palestinian refugee parents who were resident there. In 1985 he left school in Syria, aged 15 years, to go to the Lebanon. He did that to join the People's Front for the Liberation of Palestine General Command ("PFLP"). From then until 1988 he was in Lebanon. Throughout this period he says he was engaged with other members of the PFLP in armed conflict with the Amal movement. 7 In 1988 he determined to return to Syria but was detained at the border. The Syrian authorities, however, only held him in detention for five days and soon thereafter he commenced what appears to be the normal two years of military service required of residents of Syria. After completion of his military service in Syria in 1991 he joined a PFLP group in Libya. 8 In 1995 he became disenchanted with the plans of action of the PFLP group and determined to leave the group. He said that he unsuccessfully applied for a visa to Malta and attempted to enter Egypt but was turned back at the Egyptian border. He tried to depart from Libya to enter Germany and Italy but his attempts were unsuccessful. Accordingly, he remained from 1995, when he left the PFLP group in Libya, in that country until 1999. 9 In 1999, when he learned of his father's death, he returned to Damascus for the funeral. From his return he remained living in Damascus until August 2000 when he left Syria. He entered Australia in September 2000. He claimed that he fears persecution, if returned to Syria, at the hands of the PFLP. He disavowed any fear of ill-treatment by the Syrian authorities themselves. His claim in effect was that the Syrian authorities would be unable or perhaps unwilling to protect him from the PFLP, who have a strong presence in Syria and close links with elements of the Syrian government. 10 The Tribunal rejected his claim to a protection visa for a number of reasons. Firstly, it noted that while living in Syria the appellant, as a stateless Palestinian, had the protection of the United Nations Relief and Works Agency for Palestinian Refugees in the Near East ("UNRWA"). Article 1D of the Convention relating to the Status of Refugees 28 July 1951, as amended by the Protocol relating to the Status of Refugees 31 January 1967 ("the Convention"), provides:
"This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees, protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention."
11 UNRWA is such an organisation or agency. 12 The Tribunal made a number of findings, to which I now turn. It is accepted that both the appellant and his family are registered with UNRWA and that UNRWA registered Palestinians resident in Syria have nearly the same status as Syrian nationals. It also found that Palestinians resident in Syria are entitled to obtain a travel document which allows them to travel abroad and return without a re‑entry permit. 13 The Tribunal noted the appellant's claim that he lost his permanent residence in Syria when he went to Lebanon in 1985 or perhaps to Libya in 1991; but the Tribunal said that it was apparent that he retains the right to return to Syria as evidenced by his return from both those other countries - the one in 1988; the other in 1999. For those and other reasons which the Tribunal set out, it concluded that the appellant can have a replacement travel document issued to him by the UN or by the Syrian authorities, if he wishes. It also concluded from the material that I have referred to that the Syrian authorities recognised the appellant's right to reside in Syria as a Palestinian refugee. 14 The Tribunal recorded the appellant's statement that he was still registered with UNRWA and would have no difficulty returning to Syria from the point of view of the government of that country. The Tribunal said that the appellant's mother and a number of his brothers and sisters continue to live in Syria under UNRWA protection, and that if the appellant does not currently have that protection, he could regain it on return to Syria, as he had on previous occasions. 15 The Tribunal then considered the question of whether Syria could be regarded as the appellant's country of former habitual residence for the purposes of the definition of "refugee" in Art 1A of the Convention, which provides:
"For the purposes of the present Convention, the term 'refugee' shall apply to any person who :
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization ;
Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section ;
(2) As a result of events occurring before 1 January 1951 and owing to 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 and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term 'country of his nationality' shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on wellfounded fear, he has not availed himself of the protection of one of the countries of which he is a national."
16 The Tribunal concluded at this point that the appellant was a former habitual resident of Syria and that he had a right to resume residence in that country. 17 The Tribunal then turned to a consideration of Art 1D of the Convention in relation to the appellant. The Tribunal said that while it was obvious that the appellant does not have "the complete protection", as the Tribunal put it, and the assistance of UNRWA while he is in Australia, it is also clear that he retains a current entitlement to that protection that can be realised should he return to Syria. Accordingly, the Tribunal concluded that the appellant came within the provisions of Art 1D and was not entitled to a protection visa for that reason. 18 The Tribunal then proceeded to explain why there was a second, quite separate justification for refusing the applicant the protection visa. The Tribunal held that even if it was wrong in thinking that the appellant came within Art 1D and was not entitled to a protection visa because of that, the appellant did not come within Art 1A because there was not a real chance that he faced persecution should he return to Syria, his country of former habitual residence. In this context the Tribunal noted the appellant's evidence that he has never encountered any problems with the Syrian authorities and that his fears related to the PFLP. 19 It made findings that there was no basis for such fears of ill-treatment at the hands of the PFLP sufficient to bring the appellant within the definition of refugee in Art 1A. It referred to the appellant's evidence that he lived for a number of years after 1995 in Tripoli in Libya where the PFLP had a strong presence and could easily have harmed him if that was its wish. It also referred to the appellant's evidence that very quickly after he returned to Syria in 1999 the PFLP discovered his presence there and in fact made contact with him. Despite this, the PFLP made no attempt to harm him, ie, during the period of his return in 1999 until his departure in August 2000. The Tribunal also noted that there was no suggestion that the PFLP had sought to put pressure on or harm any member of his family living in Syria. 20 The Tribunal then dealt with a further basis upon which the appellant claimed he feared persecution if he were to return to Syria. It said that he claimed that his chances of being persecuted by the PFLP had been increased because its members will know that he has "talked", ie, talked about them, since he came to Australia. It noted the opportunities he had had, after separating from the group in 1995, to reveal information about the PFLP and the absence of any reprisal or attempt to harm the appellant by that group. It did not accept that he had any increased chance of being harmed because he might be suspected of talking about the PFLP in Australia. 21 The Tribunal accordingly held that the appellant had failed to show he had a well-founded fear of persecution if he were to be returned to Syria sufficient to bring him within the Convention. Accordingly it rejected his claim for a protection visa. 22 Heerey J affirmed the Tribunal's decision. He agreed with the Tribunal's interpretation of Art 1D of the Convention. He said that, given the findings of fact that the applicant can obtain UNRWA documents and return to Syria where he would enjoy the rights that were set out by the Tribunal, it is correct to say that he is "at present receiving" protection or assistance from UNRWA in the sense that he has the immediate right to practical assistance in the ways mentioned. As to the second basis for the Tribunal's decision Heerey J said:
"The remainder of the Tribunal's decision was plainly a question of fact. The applicant, who is not legally represented, could do no more than assert contrary factual claims."
23 His Honour gave some examples of the contrary claims the appellant made in the proceedings before him. He held, however, that no error of law or other error within s 476 the Migration Act had been shown. Accordingly, he dismissed the application for review. 24 The appeal, in my opinion, has no prospect of success. Nothing has been advanced by the appellant to show that Heerey J was wrong in rejecting the attack on the Tribunal's second ground for decision, ie, what the Tribunal had to say about there being an absence of a well-founded fear of persecution if the appellant were returned to Syria, and thus a failure by the appellant to show that he was a refugee within Art 1A of the Convention. 25 At this hearing the appellant advanced a number of new factual claims. As Heerey J pointed out, the Federal Court is not able to form a view on the merits of the case by considering all the factual claims that a person may make at any time. The Court cannot consider the claims that the appellant put to it today. 26 I should, however, note that in the information the appellant gave to the Court today he repeated his claim, put to the Tribunal, about fearing persecution if he returned to Syria because PFLP members might suspect that he had spoken about the group in Australia. In doing this, he showed the Court an outline of argument prepared by the Minister in another case involving an applicant named Sahtout. In the Sahtout outline, the Minister argues that Heerey J's interpretation of Art 1D of the Convention in the present appellant's case was the correct one. The appellant expressed concern that this reference in the Minister's outline in Sahtout may be seen as showing that the appellant has co-operated with the Department of Immigration in giving information to it. I do not think the reference to his case by name in the Sahtout submission is likely to have any such consequence. But, in any event, it adds little to what he had already told the Tribunal about being seen as a person who had given information about the PFLP after he came to Australia, a claim that the Tribunal rejected. This, like the other new claims that the appellant made to the Court today, cannot, in any event, be taken into account by the Court in this appeal. 27 I have already referred to Heerey J's conclusion that Art 1D of the Convention excludes from general Convention protections not only those Palestinians living in the Middle East who are actually under UNRWA protection, but also Palestinians, like the appellant, who seek asylum in a country outside the Middle East. That is so, according to Heerey J, provided a Palestinian outside the Middle East can, on return to that area, obtain UNRWA protection. 28 The appellant challenged the correctness of what Heerey J had to say about Art 1D at the hearing today. The Minister submitted that Heerey J's interpretation was correct. But the Minister, by his counsel, further submitted that it was not necessary to rule on the point. This was so because of the second ground upon which the Tribunal relied to refuse the visa, viz, the absence of a well-founded fear of persecution. 29 The Minister declined the Court's invitation to develop an argument in support of his favoured interpretation of Art 1D. It is to be noted that in decisions given subsequent to Heerey J's decision in this case, two judges of the Court have disagreed with Heerey J's interpretation. In Minister for Immigration and Multicultural Affairs v Quiader [2001] FCA 1458, French J made a detailed examination of Art 1D, including the preparatory works, and held that Art 1D did not exclude from the protection of the Convention a Palestinian entitled to protection and assistance from UNRWA who was nevertheless at risk of persecution if returned to his home region, notwithstanding that region was within the territorial competence of UNRWA. His decision is inconsistent with Heerey J's view that a Palestinian outside the Middle East, ie, outside the area in which UNRWA operates, is excluded by Art 1D from the general protection provisions of the Convention if he can, on return to the Middle East, obtain that organisation's protection. 30 In Jaber v Minister for Immigration and Multicultural Affairs [2001] FCA 1878, Carr J dealt with the proper interpretation of Art 1D. He said:
"I do not think that the words 'at present receiving' [in the Article] should be construed as meaning 'at present entitled to receive' even though the relevant person may not be within the area of UNRWA's operations. To the extent that this opinion differs from the views expressed by Heerey J in Abou Loughod … I respectfully differ from those views, to the degree which entitles me not to follow them."
31 He further held that the second paragraph of Art 1D should be construed as providing that, when a person who has been receiving protection and assistance from a relevant United Nations organisation or agency has ceased, for any reason, to receive such protection and assistance, then that person will be entitled to claim the general benefits of the Convention. 32 In view of the Minister's failure to support his contention that Heerey J's interpretation of Art 1D is correct, and given that the appeal can be disposed of without this Court ruling on that issue, I will not express my own opinion on the proper operation of Art 1D. Nothing I have said should, of course, be taken as favouring Heerey J's interpretation. 33 I have explained why I can see no error in Heerey J's decision that the Tribunal was free of reviewable error in holding that he was not a refugee within Art 1A of the Convention. That is sufficient to show that if an extension of time to lodge the appeal were now granted, it would serve no purpose. The appeal would be doomed to fail. For these reasons, I would refuse the extension of time to file the appeal and would dismiss the appeal. 34 MANSFIELD J: I agree with the reasons for decision of the learned presiding judge and the orders he proposes. In particular, in the circumstances referred to by his Honour, I share the view that it is neither necessary nor appropriate to express any view as to the proper construction and scope of operation of Art 1D of the Convention. 35 EMMETT J: I agree with my brother Drummond J, that leave should not be given to file the notice of appeal out of time. There was an unequivocal finding by the Tribunal that the appellant did not fall within Art 1A of the Convention because there is no real chance of persecution upon his return to Syria. 36 Heerey J demonstrated no error in rejecting any argument that that finding was flawed. It follows that his Honour was correct in dismissing the application. I also agree that it is inappropriate that this Court express any view as to the proper construction of Art 1D. There has been no argument on that question but the dismissal of the appeal should not be taken to be an endorsement of the view of Heerey J. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Mansfield and the Honourable Justice Emmett.
Counsel for the Appellant: Appellant appeared in person.
Solicitor for the Respondent: Australian Government Solicitor
Abu-Loughod
Minister for Immigration & Multicultural Affairs