Applicant C v Minister for Immigration & Multicultural Affairs

factual and procedural background 2 The applicant is a citizen of Iraq. He arrived in Australia by boat from Indonesia on 20 December 1999, without a visa. On 7 May 2000 the applicant applied for a protection visa. On 19 July 2000 a delegate of the respondent refused to grant that visa. On 24 July 2000 the applicant applied to the Tribunal for review. Following the Tribunal's decision to affirm the decision of the respondent's delegate, the applicant, on 25 September 2000, applied to this Court for a review of the decision. 3 The Tribunal found that there would be a real chance of the applicant being subjected to persecution if returned to Iraq. The evidence was that the applicant's father had been executed in 1980 by Iraqi security forces, an event which had a continuing negative impact on the applicant's employment opportunities. Following the assassination of Imam Al-Sadr on 19 February 1999, Iraqi security forces searched for and detained a large number of students, including friends of the applicant, at the Faculty of Z at Z. The applicant and his friends regularly attended Friday prayers, which made them a special target of the authorities. In April 1999 security forces broke into the applicant's familial home (where he lived with his mother and brother) at a time when the applicant was not at home. The security forces searched the house and found religious books, one of which was written by the Imam Al-Sadr. The security forces asked questions about the books and arrested the applicant's brother. His brother is still detained by the security forces, his family has not had any contact with him, and does not know where he is. 4 The Tribunal stated that it was satisfied that the applicant was and continues to be perceived by the Iraqi authorities as politically suspect. It said that it was satisfied that the treatment which the applicant would face upon return to Iraq would include arrest, interrogation and torture. It would have been open to the Tribunal (on the basis of the evidence before it) to have included execution in that list. The risk of serious harm should the applicant, by some mischance, be returned to Iraq is obviously very high. It was for that reason that, after reserving judgment and without any motion, I decided that, subject to any valid objection from the parties, I would at the time of delivering judgment make fairly stringent confidentiality orders and I arranged these reasons in a manner designed to reduce the likelihood of the applicant being identified. 5 The applicant's unchallenged and accepted evidence was that he went into hiding in a relative's house during April and May 1999 and then moved to another relative's house elsewhere in Iraq where he learned that the Iraqi security forces were continuing to search for him. A cousin of his in X arranged an invitation from the Iraqi Affairs Office in Damascus for the applicant to visit Syria. The Iraqi Affairs Office is run by groups in opposition to the Iraqi Government. The applicant's relatives arranged a driver to take the applicant from Iraq to Syria. He arrived in that country on 17 September 1999. The applicant's evidence was that he was entitled to stay in Syria, pursuant to that invitation, for only three months and was not entitled to return. He left Syria about 2˝ months later. 6 The Tribunal was satisfied that the applicant's case fell within the provisions of s 36(3) of the Migration Act 1958 (Cth) ("the Act") because he had not taken all possible steps to avail himself of what it saw as his right to enter and reside in Syria, and that accordingly Australia did not have protection obligations towards him. It stated that it was satisfied that the applicant would be able to arrange to re-enter Syria through the Iraqi opposition group that previously sponsored him, that upon re-entry to Syria he would be able to reside there on an indefinite basis and would not be at risk of being refouled to Iraq. There was no evidence that the applicant had a well-founded fear of persecution for a Convention reason in Syria.

the statutory provisions 7 Section 36(1) of the Act provides that there is a class of visas to be known as protection visas. Section 36(2) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. 8 Sections 36(3), (4) and (5) [which were inserted into the Act by the Border Protection Legislation Amendment Act 1999 (Cth) and came into effect on 16 December 1999] provide as follows: "Protection Obligations (3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. (4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, sub-section (3) does not apply in relation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion; sub-section (3) does not apply in relation to the first-mentioned country."

the grounds of the application 9 The applicant was represented by Mr J A Chaney of counsel on a pro bono publico basis. There were two grounds in the amended application, but the applicant abandoned the first of those grounds at the hearing. 10 The sole remaining ground was that there was no evidence or other material to justify the making of the decision - see s 476(1)(g) of the Act when read with s 476(4). 11 Counsel for the applicant pointed out that the independent evidence relied upon by the Tribunal was that Iraqis who intended to enter Syria had to be sponsored either by a relative or friend residing in Syria or by one of the Iraqi opposition parties operating in that country. In either case, a security clearance had to be obtained and communicated (often by telegram) either to the respective Syrian embassy abroad or to the airport immigration or security office at the official entry point from Iraq. Once in Syria pursuant to such arrangements, the status of Iraqis would be the same as other Arabs who could remain in the country indefinitely, subject to not breaking Syrian laws. 12 The applicant submitted that the only evidence as to the applicant's capacity to obtain the necessary sponsorship to enter Syria was that he had managed to do so, for a limited period of three months, by virtue of a contact arranged by his cousin in X, whilst the applicant was in X, and by payment of US$300 to some person unknown to the applicant. The applicant submitted that the Tribunal had assumed that, having once been able to arrange entry to Syria, he would be able to make similar arrangements again. The capacity, so it was put, in a real and practical sense, for the applicant to arrange further sponsorship, such as would put him in the position of other Iraqis legally in Syria, was not the subject of any evidence.

my reasoning 13 Section 476(1)(g) relevantly provides that the Tribunal's decision may be reviewed in this Court on the ground that there was no evidence or other material to justify the making of its decision. However, sub-section (4) qualifies that ground in the following 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." 14 The applicant relied primarily on paragraph (4)(a) but also, in the alternative, on paragraph (4)(b). I shall first consider the first of those paragraphs. But before doing so I think it is useful to revisit s 415 of the Act which confers power on the Tribunal. Section 415(1) provides that the Tribunal may exercise all the powers and discretions that are conferred by the Act on the person who made the decision. Section 415(2)(a) relevantly provides that the Tribunal may "affirm the decision". 15 The delegate's decision was that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention. He based that decision, not on the application of s 36(3), but on a factual finding that the applicant was excluded from the scope of the Convention under Article 1(E), because he could return to Syria where he did not have a well-founded fear of Convention-based persecution. Article 1(E) of the Convention provides: "This Convention shall not apply to a person who is recognised by the competent authorities of that country in which he has taken residence as having the rights and obligations which are attached to the possession of nationality of that country." 16 In supplementary written submissions filed (with leave) after the hearing, the respondent relied upon a line of cases including Doan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Olney J, Federal Court Judgment No 222/97, 9 April 1997), Ratnayake v Minister for Immigration and Ethnic Affairs (1997) 74 FCR 542, Magyari v Minister for Immigration and Multicultural Affairs partly reported in (1997) 50 ALD 341 (O'Loughlin J, Federal Court Judgment No 417/97, 22 May 1997), Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 and Lia v Minister for Immigration and Multicultural Affairs [2001] FCA 65. He relied upon those authorities for the proposition that they were on all fours with the present matter because none of the matters identified by the applicants in those cases was required by law to be established before the decision was reached. Similarly, in the present case, so it was put, the fact that the applicant had not taken all possible steps to avail himself of a right to enter and reside in Syria was not a matter required by law to be established before the Tribunal could affirm the decision. 17 I would distinguish all of those cases on the basis that in the present matter the Tribunal accepted that there was a real chance that the applicant would be persecuted for a Convention reason if returned to Iraq. He was thus a person to whom Australia owed protection obligations, unless some exception applied. To affirm the delegate's decision in this case the Tribunal had to decide whether on the facts it fell within the exception provided by s 36(3) of the Act. 18 In terms of s 476(4)(a), in my opinion, the Tribunal having found that there would be a real chance of the applicant being subjected to persecution for a Convention reason if returned to Iraq, was required by law [i.e. s 36(3) of the Act] to affirm the delegate's decision that the applicant was not a person to whom Australia had protection obligations only if a particular matter was established. The particular matter which had to be established was that the applicant had a right to enter and reside in Syria, whether temporarily or permanently, however that right arose or was expressed, and that he had not taken all possible steps to avail himself of that right. 19 The respondent submitted that the word "right" in s 36(3) did not refer to any "legal right as such". The respondent contended that the inclusion of s 36(3) by the 1999 amending legislation did not "override the existing common law test". Sub-section (3) was, so it was put, declaratory of the pre-existing common law. It was an interpretative provision which picked up on the common law with an additional requirement. The respondent sought to support the Tribunal's decision on the basis that it was open to the Tribunal to conclude that the applicant had effective protection in Syria and that Australia had no protection obligations to him. Accordingly the criterion for a protection visa stipulated in s 36(2) was not satisfied. 20 The respondent relied on cases which included Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526, Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 and Al-Rahal v Minister for Immigration and Multicultural Affairs [2000] FCA 1005. 21 I think that there are two major problems with the respondent's submissions. The first is that it is quite clear from the Tribunal's reasons that the Tribunal considered the matter of effective protection, not by application of any common law test, but by the application of s 36(2) as qualified by sub-sections (3), (4) and (5). This can be seen by the references to those provisions at p 2 of its reasons and the following passage at p 25 of those reasons: "In relation to this [whether the applicant has effective protection in Syria], the Tribunal is obliged to consider whether the applicant has taken all possible steps to avail himself of a right to enter and reside in Syria, whether on a temporary or a permanent basis. The Tribunal is further required to consider whether the applicant has a well-founded fear of being persecuted in Syria or of being refouled to Iraq by the Syrian authorities." 22 The Tribunal did not purport to base its decision on the applicant's failure to remain in Syria. It made what I would call a predictive assessment, not a historical one. Paragraph 21 of the respondent's written submissions and paragraph 11 of his supplementary submissions, which relied on what the applicant had or had not done in the past, are thus not to the point. 23 When (at p 27 of its reasons) the Tribunal said that it was satisfied that the applicant had effective protection in Syria, I think that it is clear that it was not relying upon common law principles, but applying s 36(3), (4) and (5). Its reference to "effective protection" can, in my view, clearly be seen as a shorthand reference to those provisions. 24 The second major problem with the respondent's submissions is that the same "no evidence" ground would be made out even if the Tribunal had purported to apply the common law test i.e. that there was nothing in the material before the Tribunal to suggest a legal right to return to Syria. French J recently had to consider a similar question in Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554. In issue in that case was whether there was evidence or other material to justify the Tribunal's conclusion that Mr Patto could return to Greece where he would have effective protection. At para 38, French J said this: "The Tribunal had no information from the Greek government about Patto's right of return to that country. Nevertheless noting that Patto was refused refugee status by the Greek government, that he had resided there following that refusal for seven years and that his family still resided there, the Tribunal was satisfied that he had "… a right to return to Greece". With all due respect the conclusion of a right to return to Greece is a non-sequitur. There is nothing in the material to suggest a legal right to return to that country. While it may be that Patto could have remained in Greece indefinitely, his departure in (sic) Australia and prospective re-entry as a deportee from this country are circumstances which place in the realm of sheer speculation what the attitude of the Greek government might be to his re-entry. This difficulty also confronts the Tribunal's fall-back finding that even in the absence of a legal right he would, as a matter of "practical reality" be afforded effective protection in Greece." 25 His Honour then turned to the application, in that case, of s 476(1)(g) when read with s 476(b), and said (at para 40): "On the primary facts which it found, there was no basis for the Tribunal to reach the conclusion that Patto has a right to re-enter Greece. That was a fact critical to its decision that third safe country protection was available in Greece which in turn went to the question whether return to Greece would breach Australia's obligations under Article 33. Nor was there any basis for the fall-back position in purported application of the approach of Emmett J in Al-Zafiry that "…as a matter of practical reality and fact the applicant is likely to be given effective protection by the third country, Greece." Given the present circumstances of the applicant outside Greece there was simply no information from which that conclusion could be drawn. I would add that the evidence of Mr Venizelakos [whose affidavit was tendered and admitted into evidence at the trial before French J] is not relied upon in my assessment of the Tribunal's reasoning process. Nevertheless, it supports the finding that the particular facts found by the Tribunal did not exist." 26 In my view, the administrative law facts in Patto are on all fours with the administrative law facts in the present case. 27 I was informed by counsel that there is as yet no authority on the construction of s 36(3). My searches were unable to find any either. 28 I reject the respondent's submission that the word "right" in the phrase "… a right to enter and reside in …" in s 36(3) does not mean a legal right. I reject also the respondent's submission that these sub-sections are a codification of the common law. I acknowledge that they reflect much of the case law on effective protection, some of which I have referred to above as having been cited by the respondent. But, as I see it, s 36(3) is a new statutory hurdle which would-be refugees have, since 16 December 1999, been obliged to jump. By that remark I intend no criticism of the provision whatsoever. If it be established that a person has an enforceable right to enter and reside in another country in which he or she would have no well-founded fear of being persecuted for Convention reasons or of being returned to another country in which he or she would have a well-founded fear of persecution for a Convention reason, then there are obviously valid arguments that such a person does not need Australia's protection as a refugee from persecution. Properly construed, I consider that s 36(3) is consonant with Article 1(E) of the Convention. But it is new law. Senator Patterson said as much in a speech when he tabled a Supplementary Explanatory Memorandum relating to the amendments which included these new sub-sections. In Hansard for 25 November 1999 at 10668 Senator Patterson said this: "The amendments that I placed before the chamber today are part of a package of tough new measures that the Minister for Immigration and Multicultural Affairs announced on the 13 October 1999. These measures are aimed at curbing the growing number of people arriving illegally in Australia, often through people smuggling operations. . . . Some refugee claimants may … have rights of return or entry to another country, where they would be protected against persecution. Such people attempt to use the refugee process as a means of obtaining residence in the country of their choice, without taking reasonable steps to avail themselves of protection which might already be available to them elsewhere. . . . For those who have a right of re-entry to a safe third country, it [a reference to the question of whether a person has protection in another country being considered as part of the decision-making process for a protection visa application] also raises the risk that, by the time the application has been finally determined, and avenues for judicial review have been exhausted, their rights of re-entry will have expired. . . . The amendments also include an interpretative provision to make it clear that Australia does not owe protection obligations to non-citizens if they have not taken all possible steps to avail themselves of a right to enter and reside in a country other than Australia." [I interpolate here to say that this paragraph is a clear reference to s 36(3).] 29 Paragraph 2 of the Supplementary Explanatory Memorandum relating to the above-mentioned amendments read as follows: "2 The purpose of these amendments to the Border Protection Legislation Amendment Bill 1999 is to prevent the misuse of Australia's asylum processes by "forum shoppers". These amendments will ensure that persons who are nationals of more than one country, or who have a right to enter and reside in another country where they will be protected, have an obligation to avail themselves of the protection of that other country." 30 A literal construction of the word "right" in a statute must, in my view, be that it is a legally enforceable right. The extraneous materials to which I have referred above tend to support a literal construction. So does the fact that a literal construction would advance the purposes of the Refugees Convention whereas to construe the word "right" as meaning something less than a legally enforceable right would place much greater obstacles in a refugee's path. 31 In the present matter there was no evidence that the applicant had a legally enforceable right to enter Syria. The only evidence was that if he were able to obtain sponsorship from within Syria then he would be permitted to enter Syria and remain there so long as he complied with Syrian laws. There was no evidence that the applicant, who is now in a detention camp in Australia, could obtain the necessary sponsorship. In his supplementary submissions the respondent raised various alternative arguments (see paragraphs 10 to 12). They were all based on the assumption that the applicant had a right to enter Syria. As there was no evidence that such a legal right existed, it is not necessary to consider those submissions. 32 In my view, in terms of s 476(4)(a), there was no evidence or other material from which the Tribunal could reasonably be satisfied that the particular matter (which I have identified at para 18 above had to be established before the Tribunal could make the decision under review) was established. 33 Furthermore, in relation to s 476(4)(b), it is quite clear that the Tribunal based its decision on the existence of the particular fact that the applicant had the right to re-enter Syria, and that fact did not exist. Syrian law is a matter of fact. To the extent that there was evidence of that law before the Tribunal, it is quite clear that the right of re-entry is conditioned upon sponsorship from within Syria. The applicant did not have such sponsorship. I follow respectfully the approach taken by French J in Patto. 34 In my view, the applicant has made out his ground of review. In terms of s 476(1)(g) there was simply no evidence or other material to justify the making of the Tribunal's decision.

Conclusion 35 For the above reasons, the application will be allowed, the decision of the Tribunal will be set aside and the matter will be remitted to a differently-constituted Tribunal for reconsideration according to law.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate: Dated: 12 March 2001 Counsel for the Applicant: Mr J A Chaney

Solicitor for the Respondent: Australian Government Solicitor

Further submissions: 28 February 2001, 7 March 2001