Saket v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming the decision of the respondent's delegate to refuse to grant a protection visa to the applicant. The Tribunal answered, adversely to the applicant, the central question posed by the criterion for a protection visa prescribed in s 36(2) of the Migration Act 1958 ("the Act"). It found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention because he already had effective protection in a third country. 2 In making that finding, the Tribunal purported to apply the principles governing Australia's obligations imposed by Art 33 of the Refugees Convention, as they were explained in a line of authority in this Court culminating in the decision of Weinberg J in Minister for Immigration and Multicultural Affairs v Gnanapiragasam (unreported, 25 September 1998). The Tribunal said: "In determining whether an applicant has effective protection in a third country relevant considerations will usually be: whether the applicant has the right to reside in, enter and re-enter the third country; whether there is a risk that the third country will return the applicant to a country where he claims to fear persecution; and whether the applicant has a well-founded fear of persecution in the third country itself." 3 In the present case the applicant's grounds of review focus on a particular aspect of the first of those considerations stated by the Tribunal, namely, the right to re-enter the third country. The Tribunal's omission to make specific inquiries on that subject is said to constitute a failure to act according to substantial justice for the purposes of s 420(2)(b) of the Act and thus to amount to failing to observe procedures required by the Act to be observed for the purposes of s 476(1)(a) of the Act. The applicant also relies on the ground specified in s 476(1)(g) of the Act to challenge the Tribunal's finding on this topic. 4 The essential background that is necessary to understand the challenge thus raised may be relatively briefly stated. The applicant was born in Kuwait, as were his wife and five children. But all of them are stateless, having no nationality, and are known as Bedoon. (Apparently this is the Arabic word for "without", which is occasionally spelled in English as bidun or bidoon, and is used as an abbreviation of the phrase "without nationality" or "without citizenship".) In 1992, following the Gulf War, the applicant and his family were expelled from their native country and went to live in Iraq. At the end of 1996, he and his family voluntarily left Iraq and moved to Syria. In 1998 the applicant travelled to Australia via Saudi Arabia and Thailand, using two false passports and arriving here on 22 August 1998. He left his wife and children behind in Syria, where they were still living at the time of the Tribunal's decision. 5 In support of his visa application, which was completed with the assistance of a migration agent and lodged on 4 September 1998, the applicant evidently claimed to have been persecuted as a Bedoon in Kuwait and to have no right of residence in Iraq, whither he had been expelled from Kuwait, or in Syria. On 8 September 1998 the respondent's delegate refused to grant him a protection visa. 6 On 11 September 1998 the applicant applied to the Tribunal for a review of that decision. Meanwhile, on 9 September 1998, the Department of Immigration and Multicultural Affairs ("DIMA") had requested information from the Department of Foreign Affairs and Trade ("DFAT") in the following terms: "Background Applicant claims he is a Kuwaiti Bedoon who was deported to Iraq in 1994 where he remained until 1995 and fled to Syria via Jordan in 1995 where he remained until this year. Questions Case officer would appreciate information about the situation of Kuwaiti and Iraqi Bedoons in Syria generally as follows: Q1. What is their treatment by the Syrian authorities? Q2. What are their residency rights, opportunity to work and to access general services such as health and education. Q3. How likely are the Kuwaiti and Iraqi Bedoons to be expelled or returned to Kuwait, Iraq or elsewhere? What are the general procedures for such expulsion? 7 DFAT replied to DIMA on 14 September 1998 as follows: "Following information provided by UNHCR Senior Protection Officer in Damascus to allow us respond to questions: A1. Treated as other Arabs - no residence requirement to remain in Syria - can stay as long as desired as long as they do not break Syrian laws or regulations. Some Arabs stay for 20 to 30 years or more without travel documents. A2. As noted above there is no requirement to obtain residence. Like other Arabs they have access, free of charge, to health and education services. Work in professional capacity normally requires a work permit which may not be easily obtained however other work, including small business enterprises and shops are tolerated. A3. They are unlikely to be expelled unless they break the laws of Syria or come to adverse notice of political or security authorities. Procedure is that the relevant Security Branch recommends deportation the actual decision being made by a "Committee on Iraqis" comprised of a range of security authorities, a decision being issued under the authority of the Baath Party (National Leadership)." 8 The Tribunal held a hearing. In its reasons for decision the Tribunal says that it held that hearing on 2 November 1998, but it appears, in fact, to have taken place on 26 October 1998. The Tribunal said in its reasons: " . . . [The applicant's] wife and family are still living in Damascus. He claims that he has no right of return to Kuwait and no right of residence in Iraq or Syria, which is why he seeks protection in Australia. The applicant was read independent evidence which serves to negate his claims that he would have been sent back to Kuwait or Iraq if the Syrians had found out that he was a Kuwaiti. . . . On the strength of the independent evidence, the Tribunal indicated that it saw no reason why the applicant should not return to Syria. The applicant's adviser, Mr Kerry Murphy of the solicitors' firm Craddock, Murray Neumann of Sydney, requested time to study the independent evidence, and it was agreed that the Tribunal would wait until Friday, October 30 (i.e. in four days' time) before proceeding to a final decision. On that day the adviser wrote to the Tribunal to ask for a further extension, and was given until November 6. . . . " 9 The Deputy Registrar of the Tribunal had written to the applicant's migration agent on 26 October 1998 as follows: "The Member reviewing your case has asked me to advise you as follows. The relevant portion of the Department of Foreign Affairs' advice regarding residency rights in Syria for your client, Mr Saleh Msayer Saket (N98/24877), is as follows (it is in answer to a question specifically on protection for Kuwaiti Bedoons who have come into Syria through Iraq): "Following information provided by UNHCR Senior Protection Officer in Damascus: There is no requirement to obtain residence. Like other Arabs they [Kuwaiti Bedoons] have access, free of charge, to health and education services. Work in professional capacity normally requires a work permit which may not be easily obtained. However, other work, including small business enterprises and shops, are tolerated. Some Arabs stay for 20 to 30 years or more without travel documents." - DFAT cable AC083 of 14/9/98. A previous cable from the Damacus mission states: "Syria recognises an "Arab" nationality applying to citizens of Arab League States (including "Palestine") and their descendants (whether or not they carry an "Arab" passport). "Arabs" (often identified by name alone) are subject to different visa processing and are permitted extended residence in Syria." - DFAT cable DM 42294, of 14/6/94, CX15225. As discussed at the hearing, the Member will allow time until Friday, October 30 for any submission regarding the above independent evidence." 10 An edited version of the DFAT cable dated 14 June 1994 referred to in that letter has been cleared for release as part of DIMA's country information databases. It states: "Title: Citizenship The relevant Director in the Syrian MFA continues to be unavailable to confirm our understanding of Syrian practice on dual nationality. Following is therefore based for Syria on that understanding, checked with local staff, and for Lebanon on a call on MFA Director of Consular Affairs. 4. Both our host countries allow dual nationality. Neither penalises their own citizens for carrying passports of another country (unless, of course, the other country is Israel). Neither host country permits children of diplomats to acquire local citizenship, nor is local citizenship normally available to the children of other foreigners simply on the basis of their being born in Syria or Lebanon. 5. Both Syria and Lebanon continue to regard the documented offspring in the male line of their nationals as citizens to indefinite generations after emigration. The local nationality is of course primary within the country, though both governments as a courtesy permit US consular access to imprisoned dual nationals (for example). Lebanon, which devotes great energy to cultivating its emigrant communities, has exemptions for foreign-born Lebanese in the application of its conscription and taxation legislation. Lebanese dual nationals can formally renounce their Lebanese citizenship before a court, or may request that they be regarded as foreign residents for property and other transactions in Lebanon. 6. Syria recognises an "Arab" nationality applying to citizens of Arab League States (including "Palestine") and their descendants (whether or not they carry an "Arab" passport). "Arabs" (often identified by name alone) are subject to different visa processing and are permitted extended residence in Syria." 11 In requesting an extension of time on 30 October 1994, the migration agent said: "Re: Mr Saleh SAKET I refer to the above matter and your letter of 26 October 1998. I contacted the UNHCR regarding the information in that document however they advised me today that they are unable to comment on your information yet but will send me a response as soon as possible. I request an extension of time in this matter given that this was the only adverse information before Mr Saket at the RRT hearing. I undertake to keep you advised of the UNHCR response. Without any response from the UNHCR yet, it is submitted that the information in cable AC083 of 14 September 1998 does not state that a Bedoon without any travel document can travel to Syria and be granted residence. The document is ambiguous on that point. It may be that once in Syria, no official residence document is required, but in the case before you, it is a question of whether he can return to Syria." 12 On 4 November 1998 the migration agent made further written submissions on behalf of the applicant to the Tribunal. Unfortunately those submissions concentrated on the question whether the exclusionary provision in Art 1E of the Refugees Convention applied in the instant case. The submissions touched on the first aspect of the considerations that arise under Art 33 of the Refugees Convention only incidentally, where the agent relevantly said: ". . . Mr Saket does not have permanent residence in Syria. My inquiries with UNHCR in Canberra indicate that whilst Arabs generally can travel to Syria, they will normally only be granted a 6 month visa. The visa does not provide permission to work, or any of the usual rights attached to residence. . . . UNHCR also advised that after this period of temporary residence, the authorities can deport a non-national." 13 The Tribunal made its decision on 19 November 1998. It said that "the applicant has found effective protection from the harm he found in Kuwait in Syria". It referred to the "independent evidence [from DFAT]" in the two communications, the terms of which I have already set out, and continued: "These cables show that the applicant can work in Syria and has access to free health and education services without attention being paid to any requirement to obtain formal residency. If he wishes, he could apply for yearly renewable visas or, after five years' residence in Syria, for a renewable three-year visa (see: Legislative Decree No. 29 - The Entry and Exit of Aliens to and from The Syrian Arab Republic and Their Residence There, part B of section on Ordinary Residence Aliens, REFWORLD). The applicant could also apply for Syrian nationality: foreigners may apply for nationality after five years of arriving in Syria even if those five years have been marked by periods of absence from that country (see: Syria's Nationality Act, Legislative Decree No. 276(1) of 20 November 1969 as amended by Legislative Decree 17 of 13 February 1972, Chapter 3 Article 4b, REFWORLD)." 14 The Tribunal found that the applicant could re-enter Syria. It referred to DFAT's 1994 cable as evidence of such "a right granted him on account of his Damascus - recognised "Arab" nationality". The Tribunal did not accept that the applicant and his family could have lived in Syria for fifteen months without coming to the attention of the Syrian authorities, and it found, consistently with the "independent evidence", that he would not require a residence permit in order to resume living with his family in Syria. Indeed, the Tribunal said that "Syrian law shows that he would be given renewable visas until such time as he is eligible for citizenship." 15 The respondent accepts that a crucial question for determination by the Tribunal was whether or not the applicant could re-enter Syria. He could hardly do otherwise. The Tribunal's reference to "the right to reside in, enter and re-enter the third country" appears to have its genesis in the respondent's successful submissions in the leading case of Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 551. The importance of the entitlement to return to the third country was emphasized by von Doussa J in the qualification he expressed (at 569-570), with which Moore J agreed (at 570), on the appropriate orders in that case. The priority of a right to re-enter was also stressed in Gnanapiragasam by Weinberg J (at 21-23). 16 The applicant is critical of the Tribunal's use of the DFAT information. He points out that the 1994 cable does not purport to deal with persons who are stateless and that it describes the situation as it existed almost five years ago. As to the most recent information, he submits that it deals only with the situation of Bedoons already in Syria, and says nothing about whether they have a current and effective right to enter Syria. In the light of these gaps in information, the applicant contends that the Tribunal should have "ask[ed] Syria's Embassy in Australia whether the Applicant or someone with his antecedents would be permitted to enter Syria". 17 The source of the obligation to make such an inquiry is said to be s 420(2)(b) of the Act. In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 the majority observed (at 561) that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make a particular inquiry, although it considered such circumstances would be rare. In Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Wilcox J held (at 119) that a differently constituted Tribunal failed to comply with s 420(2)(b) of the Act where omissions in obtaining readily available information rendered its decision manifestly unreasonable within the principle explained in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. 18 The kind of inquiry, which the applicant now says that the Tribunal should have made, is also quite extraordinary. Section 427(1)(d) of the Act permits the Tribunal to require the Secretary of DIMA to have investigations made. Here DIMA made inquiries of DFAT on 9 September 1998 about residency rights of Kuwaiti Bedoons in Syria. The Executive Government of this country normally conducts relations with foreign countries through DFAT. In this case DFAT chose to seek the requested information from its post in Damascus. The idea that the Tribunal should take it upon itself to bowl up to the door of a foreign diplomatic mission in Australia is preposterous. (A further difficulty with the whole notion may just be the inconvenient fact that Syria does not have an embassy in Australia.) 19 This is a quite different case to Sun. The applicant's agent never suggested to the Tribunal, on the question of his client's right to re-enter Syria, that it should pursue any line of inquiry, let alone the one now suggested. The failure to ask the Tribunal to make an inquiry may not be decisive (see Singh at 561), but it is plainly a relevant factor in considering whether there has been "substantial justice". In any event, the reverse happened in the present case. Faced with the apparent ambiguity of the information in the DFAT cables so far as the rights to residency in Syria of stateless persons were concerned, the applicant's agent wrote to the Tribunal on 30 October 1998. He made a submission about the gap in the information on the specific question whether the applicant could "return" to Syria, and he requested that any decision be delayed until he received a response to his own inquiries of the UNHCR. When the agent received that response, he wrote again to the Tribunal on 4 November 1998. By then the agent evidently accepted that "Arabs generally can travel to Syria" because this is what his inquiries of UNHCR had revealed. This particular aspect of the whole question of "effective protection" in a third country, namely the right of the applicant to return to Syria, thus ceased to be a live issue. There never was any question that the applicant was an Arab, albeit he was a stateless one. The first ground of challenge fails. The Tribunal plainly did not fail to observe in the manner suggested the requirements of s 420(2)(b) of the Act. 20 So far as the ground specified in s 476(1)(g) of the Act is concerned, the respondent accepts that a "particular matter" within the meaning of s 476(4) had to be established, namely, the ability of the applicant to re-enter Syria. The applicant submits that the Tribunal could not reasonably be satisfied that that matter was established on the material before it. However, as I have already pointed out, the applicant's agent had supplied the very information in question in his letter of 4 November 1998. It would not matter, therefore, if the information in DFAT's 1994 cable was stale, although the dates of the Syrian legislative decrees extracted from the UNHCR REFWORLD database to which the Tribunal refers (only part of which information is in evidence) do not suggest that is likely. Nor, for the same reason, would it matter if that cable, strictly speaking, only dealt with the situation of persons who had dual nationality or who had citizenship of an Arab League state. The agent himself clarified the position with respect to all Arabs. 21 The applicant submits that, in considering whether his right to re-enter Syria was established, the Tribunal had to deal with his particular circumstances and not those of a hypothetical Kuwaiti Bedoon. No doubt, that is correct so far as it goes, but the Tribunal has to deal with the actual claims made by the applicant. The submission that "Syria might deny [the applicant] entry because he had initially obtained refuge in Iraq or because he had entered Syria illegally in the past or because he would be coming to Syria from a Western country, possibly unwillingly", was never made to the Tribunal. It was made for the first time on the present application for judicial review. The applicant links this submission with a reference to the Full Court's statement in Thiyagarajah (at 565) that the same test as arises under Art 1A(2) of the Refugees Convention should be applied in determining whether a proposed expulsion or return contravenes Art 33. In the prefatory remarks in the applicant's written submissions to the Court, there is also a hint of criticism in the way the Tribunal dealt with the possibility of refoulement from Syria. If the applicant had wished to take issue with these aspects of the Tribunal's consideration of the question of effective protection in Syria, then it should have alleged an error of law under s 476(1)(e) of the Act. The applicant has conspicuously not chosen this course, and it has entirely failed to make good any challenge under s 476(1)(g) to the finding that the applicant can re-enter Syria. Indeed, this matter was virtually conceded before the Tribunal. 22 The application will be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.