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[2001] FCA 1824
Federal Court of Australia
2001-12-17
Carr J
Original judgment source is linked above.
INTRODUCTION 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 10 July 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a stateless Palestinian born in Syria, arrived in Australia on 23 August 2000. On 20 February 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 2 May 2001 a delegate of the respondent refused to grant a protection visa and on 4 May 2001 the applicant applied for review of that decision.
the applicant's claims and the Tribunal's decision 2 The applicant's claims were, in summary, as follows: · He could be persecuted because of his father. His father had criticised Syria and had been detained for that as far back as 1967, had escaped from detention after a few months and had fled to Lebanon with a man named Zaroor who was a stalwart of Fatah, the Palestinian Liberation Organisation chairman Mr Yassar Arafat's faction of the PLO. · Because of his father, his mother had been detained and interrogated by the Syrian authorities when she used to travel back and forth to Syria in the 1980s (she used to go to Syria to have her children, and then return to Lebanon). · Eventually most of the family had settled permanently in Syria but his father had stayed in Lebanon with one or two of the applicant's brothers. · His father had got into further trouble when he had been involved in an attack on a Syrian road block in the late 1980s in which at least one Syrian officer had been killed. · He used to travel to Lebanon every year for several years until 1992 to visit his father. · He believed that he had been refused entrance to university because of his father and the link with Zaroor. · The Syrians had failed to seize his father in Lebanon because he was in Saidan (Sidon) which was controlled by Arafat. · He had been interrogated, and detained due to a cousin named Ziad who had been arrested in 1980 for being in the Muslim Brotherhood. · His brother Khaled's fighting role in Fatah in Lebanon in 1985 was part of the reason why the Syrian authorities had interrogated and detained him several times. · In October 1999 two other brothers had gone to Lebanon to look for his father and on their return had been arrested by the Syrian Mukhabarat (intelligence/security) and detained for 15 days. · His brothers had gone to Lebanon at the same time as 15,000 other Palestinians, three hundred of whom had been arrested on return to Syria. · There had been demonstrations in protest at these arrests in Aleppo, in Syria. The applicant had been among those demonstrators arrested and had been in detention for three weeks. · He would be persecuted on return to Syria and in the past had been detained, interrogated and mistreated over his individual political activities. He had been in the "Palestinian Democractic Front" (which the Tribunal took to mean the Democratic Front for the Liberation of Palestine). · In 1998 he had been detained for about 4 months for having spray-painted graffiti on behalf of this group about the peace talks between Palestinian officials and Israel. · He had participated in political discussion groups and in an informal way tried to get others to join. The group was led by Mr Nayef Hawatmeh. The applicant claimed that he would be put in gaol for being in Hawatmeh's party. · In May 2000 he had heard through his employer (at a hotel) who had heard it from a friend in the security services, that he was being targeted by the Syrian State through allegedly being a member of the "Revolutionary Committees". Although he had no such involvement, he felt impelled to flee Syria shortly afterwards because he had many friends who were in that "party" with whom he used to meet all the time to share political views. This, the applicant claimed, could have made the authorities believe that he too was in the "Revolutionary Committees". · The leader of the "Revolutionary Committees" was Sabri Al Banna. · He had left Damascus in July 2000 after obtaining a passport with the help of his employer during the previous month. The employer had paid a bribe to get the passport. · At his first interview the applicant said that the passport was a valid Palestinian travel document issued by Syria. A people smuggler had seen him through the security checks at Damascus airport. He claimed that he would be persecuted partly for having left Syria "illegally". 3 I shall not attempt to summarise the Tribunal's findings and reasons. I set them out below in full. I have added numbers to the paragraphs to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS
GROUNDS OF THE application 4 The applicant does not appear to have had legal assistance in drafting his application. In it the applicant stated that he was aggrieved by the Tribunal's decision because:" "I can't go back to Syria because I have a well founded of fear (sic)." 5 No grounds were stated in the application. In that part of the printed form of application which made provision for the grounds there was the following statement: "The submission well fellow (sic)".
my reasoning 6 The applicant was not legally represented at the hearing before me today. He made oral submissions which were either of a factual nature or went to the merits of the Tribunal's decision, or both. He also tendered a Lebanese identity card and an identity card which were said to confirm his membership as a soldier of the Democratic Front for the Liberation of Palestine. Both documents were in Arabic. Mr Abu‑Amsha, an interpreter who interpreted for the purposes of the hearing, was good enough to translate as much as he could read of those two documents. His translation confirmed that they to be documents of the two types described to me by the applicant. The applicant stated that neither of these documents had been in evidence before the tribunal. In my view, those two documents are inadmissible because they are not relevant to any issue which I have to decide. 7 In the earlier part of its reasons the Tribunal can be seen to have set out the relevant law correctly and there is nothing later in its reasons to suggest that it did not apply the law as earlier recited. 8 The respondent made what was described as a formal submission in the following terms: "With regard to the interpretation and application of Article 1D [of the Convention] in this case, the respondent makes the formal submission: (a) that the interpretation of Article 1D in Abou‑Loughod v Minister for Immigration and Multicultural Affairs (2001) FCA 825 is correct and the Tribunal erred by not following that judgment to find that the applicant as an UNRWA‑registered Palestinian has a continuing entitlement to the protection and assistance of UNRWA and is therefore excluded from the protection of the Convention by Article 1D; (b) that the interpretation of Article 1D in Minister for Immigration and Multicultural Affairs v Quaider (2001) FCA 1458 is not correct."
article 1D of the refugees' convention 9 Article 1(D) of the Convention reads as follows: "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 definitely 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." 10 The Tribunal referred to Article 1(D) of the Convention in paragraph numbered 35 of its reasons above. The Tribunal considered that it did not have to decide whether persons, such as the applicant, who are registered by UNRWA are entitled to certain assistance from that organisation and are thus excluded from the Convention by Article 1(D). The Tribunal decided the matter on the basis that the applicant was excluded from the protection of the Convention article under Article 1(A). 11 As I have mentioned, the respondent formally submitted that the interpretation placed by French J on Article 1(D) in Minister for Immigration and Multicultural Affairs v Quiader[2001] FCA 1458 was not correct. In that case French J expressed the view that the Tribunal had not erred by refusing to apply Article 1(D) so as to exclude the applicant from the benefit of the Convention. 12 His Honour expressed the view that article 1D did not apply to exclude an applicant who was entitled to protection and assistance from the UNRWA if nevertheless he was at risk of persecution if returned to his home region, even if that was a region within the territorial competence of that agency. 13 I respectfully agree with that conclusion although, strictly speaking, it is not necessary for me to do so on the facts of this case. 14 In my view, Article 1(D) should be construed, within reasonable limits, beneficially so as to favour persons who genuinely need international protection, in the sense that they face a real chance of persecution for a Convention reason. I see that approach as requiring Article 1(D) to be read literally when such a reading advances the interests of genuine refugees and, in the case of ambiguity, to be read purposively to the same intent. 15 Accordingly, in my opinion, the first clause of Article 1(D) should be read literally. But it should not be read (as perhaps its drafters intended - see Quiader at [22]) in the sense of referring to persons who, as at or about 1951, were receiving the relevant protection or assistance. It should be read, in my view, as applying to persons who are at present (i.e. currently) actually receiving from the relevant United Nations organs or agencies protection or assistance. 16 Furthermore, I think that the reference to "or" should be read as "and". That is, the reference to the word "or" between the words "protection" and "assistance". It would be contrary to the purpose of the Convention to exclude the benefits of the Convention from persons who were persecuted (i.e. not given protection) simply because they might receive (or even were receiving) some form of assistance from the relevant United Nations organ or agency. Such a construction is permitted in certain circumstances even with Australian domestic legislation - see D C Pearce and R S Geddes "Statutory Interpretation in Australia" (4 ed) para 2.15 at p 38 and the cases there cited. 17 I do not think that the words "at present receiving" should be construed as meaning "at present entitled to receive". To the extent that this differs from the views expressed by Heerey J in Abou Loughod v Minister for Immigration and Multicultural Affairs [2001] FCA 825, I respectfully differ with those views to the degree which entitles me not to follow them. It may be that that case is distinguishable on the facts in the same manner as French J distinguished it in Quiader at [32]. 18 On my construction of the first clause of Article 1(D) and on the evidence before the Tribunal there has never been a time at which the applicant can be said to be "at present receiving" protection or assistance from a relevant UN organ or agency. Accordingly, the Convention is not excluded from applying to him. 19 Similarly, there never having been "such protection or assistance", I do not consider that the second clause of Article 1(D) has any application. Accordingly it is not necessary for me to consider the other submissions about the second clause which were put to me on behalf of the respondent. 20 The Tribunal went on to consider in its reasons whether the applicant had a well-founded fear of persecution. It found that he did not have such a fear. The basis for the Tribunal's decision was simply that it did not believe the applicant. This can be seen in paragraphs numbered 2, 4, 8, 11, 14, 15, 16, 18 and 28 of its reasons. In particular, the tribunal disbelieved the applicant's claims of persecution for the alleged political records of his family members and his own alleged individual political activities. It relied on independent country information for its conclusion that the applicant did not face persecution for being a Palestinian in Syria. 21 I was initially concerned that the Tribunal's rejection of the comment from the Department of Foreign Affairs and Trade set out in paragraph 32 might have disclosed some error of law. However, its reasoning for that rejection is set out in paragraph 33 and in my view discloses no error of law or of jurisdiction. 22 In my opinion, the Tribunal's conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the refugees convention was open to it on the material before it. 23 In the earlier part of its reasons the Tribunal can be seen to have set out the relevant law correctly and there is nothing later in its reasons to suggest that it did not apply the law as earlier recited. 24 There is accordingly no basis for setting aside the Tribunal's decision as no jurisdictional error, error of law or any other reviewable error has been disclosed. The application will be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Carr.
A/g Associate: Dated: 17 December 2001 The Applicant appeared in person:
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 17 December 2001
Date of Judgment: 17 December 2001
Kouraim
Minister for Immigration and Multicultural Affairs