S115/00A v The Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for an order of review under Part 8 of the Migration Act 1958 (Cth) ("the Act") of a decision of the Refugee Review Tribunal ("Tribunal") dated 14 September 2000. The Tribunal's decision was that it was not satisfied that the applicant, an Iraqi national, was a refugee, and affirmed the decision not to grant a protection visa. This decision was not based upon any direct consideration of whether the applicant had a well-founded fear of persecution in Iraq but, seemingly, was founded on the Tribunal being satisfied that he had a right to return to a third country (ie Syria) where he enjoys effective protection and in which he did not face either persecution for any Convention reason (ie the 1951 Convention relating to the Status of Refugees as Amended by the 1967 Protocol relating to the Status of Refugees) or any real chance of refoulement from Syria to Iraq. 2 The issues raised by the applicant in impugning the decision are various and will be noted later in these reasons. I would indicate, though, that the decision raises an issue of some possible general significance as to the operation of s 36(2) of the Act in light of recent decision of Carr J in Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 on s 36(3) of the Act. I should also mention that on 31 January 2001 an order was made that the name of the applicant as applicant in this proceeding or anything liable to identify him as the applicant not be published. The Statutory Setting 3 Section 36 of the Act provides: "(1) There is a class of visas to be known as protection visas. (2) 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. 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, subsection (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; subsection (3) does not apply in relation to the first-mentioned country." 4 Subject to a qualification noted below, the content of the question posed by s 36(2) - is a non-citizen in Australia a person to whom Australia owes protection obligations - is to be gauged by reference to the protection obligations owed by Australia under the Convention as a matter of international law: Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 at 552. The qualification to this, wrought by the 1999 amendment to the Act, is that which results from s 36(3), (4) and (5). If s 36(3) applies to a person, Australia is deemed not to have protection obligations to that person irrespective of the terms of the Convention. 5 Article 1A(2) of the Convention defines a "refugee" in the now familiar terms of being (inter alia) a person who, owing to a 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. Notwithstanding that a person satisfies that definition, the Convention nonetheless will not, or will cease to, apply to that person if the disqualifying conditions specified in Art 1C to Act 1F are satisfied. None of these are of present relevance. 6 The protection obligations owed a person who satisfies the definition but who is not caught by the disqualifying conditions, are set out in Articles 31-33 of the Convention, the principal of which is contained in Art 33. It provides: "Prohibition of expulsion or return ("refoulement")