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[2001] FCA 611
Federal Court of Australia
2001-05-25
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 5 January 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who claims to be a stateless Palestinian refugee, formerly resident in Syria and Libya, arrived in Australia on 17 August 2000. He travelled on a false Spanish passport which, before arrival in Australia, he gave to the people smuggler who arranged his journey. On 1 September 2000, the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 12 September 2000 a delegate of the respondent refused to grant him a protection visa. On 13 September 2000, the applicant sought review of that decision by the Refugee Review Tribunal.
the applicant's claims and the Tribunal's decision 2 The applicant's claims to refugee status, in summary, were as follows: · He was born in 1980 in Syria into a family in which all of his grandparents had fled Palestine (now Israel) in 1948. His father and mother were born in Syria. · The applicant lived in Syria until 1988 when his family moved to Libya where his father sought and obtained work. A large number of Palestinian refugees from Syria did the same around that time. His father's residence permit in Libya allowed the family to stay in that country until 1994. In that year his parents and his older brother and younger sister were all apprehended by Libyan authorities and deported to Syria. · His father was associated with the Palestine Liberation Front ("the PLF") and had been detained upon arrival in Syria, had been released after a week but then had either disappeared or ceased contact with the applicant, who remained in Libya. · The applicant moved into his uncle's home in Libya when the rest of his family was deported. His uncle, also a member of the PLF, apprenticed him for the trade of a welder. · He became a welder in 1995 and worked at that trade until the time he left Libya in July 2000. · He is registered with the United Nations Relief and Work Agency for Palestinian Refugees ("UNRWA"). [A copy of a certificate of registration (dated 5 November 2000) and the UNRWA registration card are in evidence. The registration card apparently serves as a travel document. His whole family is registered on that document]. · His mother retains the travel document in Syria where she currently resides with his older brother and younger sister. · The applicant claimed to be stateless although the abovementioned registration card indicates that his nationality is Palestinian. · The applicant claimed refugee status upon the basis of likely Convention-related persecution both in Libya and in Syria. His claims in relation to Libya were based on allegations that the PLF were pressing him to join its ranks and carry on his father's and uncle's work, which he had refused to do, with the result, so he claimed, that he would have been killed for such refusal had he stayed in Libya. · He could not return to Syria because what he described as "his mother's travel document", which included him, did not allow him to enter Iraq. He had contravened that restriction, when in 1992 his father and maternal uncle had sent him on a "mercy boat" to Iraq in the early stages of post-Gulf war sanctions. His maternal uncle was also on the boat. The boat arrived in Iraq, albeit empty of relief supplies because of raids off Yemen, and ultimately returned to Libya. The applicant claimed that he would be persecuted by Syrian authorities because of this illegal trip to Iraq. · The applicant introduced a new claim in a submission dated 6 November 2000 upon which he expanded at the hearing before the Tribunal. This was to the effect that reports about the applicant being an active member of the PLF had been sent to the Syrian authorities. He had learned this through a person called Mohamad who had resided in the same camp in Libya where the applicant lived for a time. Mohamad had gone from Libya to Syria in 1997 and been arrested there. While under duress, Mohamad had disclosed names of PLF activists, and had included the applicant's name. The applicant had learned about this variously from a maternal uncle now resident in Holland, from news which had been made public at the camp in Libya on the day Mohamad had been arrested and from Mohamad himself who had been released and, having returned to the camp in Libya, had told everyone in the camp what he had done and advised them not to go to Syria. · The applicant produced a document which he described as a bulletin or telegraph sent by Syrian intelligence to all ports including airports in Syria, in response to the list of names provided by Mohamad, which warned officials with some urgency to be on guard for the applicant and to arrest him on sight. · At the hearing before the Tribunal on 7 November 2000, in response to a question about his family, the applicant introduced another new claim stating that his brother had been interrogated with torture in Syria in relation to his (the applicant's) role with the PLF, but had then been released. · The applicant also mentioned to the Tribunal an episode when he was 8 years old, in which he had told a Syrian taxi driver that he supported Arafat and had subsequently been detained by Syrian security over night. 3 I set out below the Tribunal's findings and reasons, in full. I have numbered to paragraphs to facilitate the references, which I make below, to those findings. "FINDINGS AND REASONS
grounds of the application and applicant's submissions 4 The applicant (presumably with some help at the Port Hedland Detention Centre) caused his own application to be prepared and filed. On 6 March 2001 I issued a conditional referral certificate under Order 80 rule 4 of the Federal Court Rules. The certificate was: "For thepurpose of obtaining advice (whether oral or written advice). If that advice is to the effect that the applicant has a reasonably arguable case, such assistance is to extend to representation at the hearing of the application." No amended application was filed on behalf of the applicant. He was not represented at the hearing. The relevant part of the application read as follows: "I am aggrieved by the unjust decision because of my well founded fear of persecution for reasons of nationality and imputed political opinion which I have well expressed in the hearing and proved by the genuine evidences from Syria showing clearly without any doubts the reason why I have fled Libya (this word is over written and could be either Libya or Syria) and came to Australia to seek protection and what I am going to face in Syria in case of forcing return, even the UNRWA which suppose to protect me, doesn't do just a simple assistance as it's well shown by the international reports, so further more a simple look at my prior experiences the Court will find that surely I will suffer under a repetition of persecutions."
my reasoning 5 When I read the affidavit evidence in this matter I had several concerns which I raised with Mr A A Jenshel, counsel for the respondent, at the hearing. Those concerns did not (as I acknowledged) fall within any ground raised by the application. I should say that it is very much to the credit of the responsible officers in the respondent's department, the solicitor who instructs counsel, and counsel, that in matters like this one where an applicant is unrepresented, as a general rule, no technical points are taken. None was taken in the present case. I extended the opportunity to counsel to consider and file further submissions on the points which I raised, and to which I refer below. The hearing was adjourned for the filing of further submissions from both sides. I determined (as had been foreshadowed as a possibility at the hearing) that there would be no further oral hearing. I now turn to the matters which concerned me. 6 The first arose out of the fact that the applicant, through his then solicitors, had filed with the Tribunal submissions which claimed refugee status on the basis of likely persecution in Libya or, in the alternative, Syria. At paragraph numbered 6 of its reasons set out above the Tribunal dealt with the claim in relation to Libya and found that as the applicant had no right of re-entry into Libya, and given the significance of Syria in this matter (not least because he had the right of re-entry to Syria), all claims against the notion of return to Libya were "moot". 7 The Tribunal accepted the applicant's claim to be a stateless Palestinian refugee. In terms of Article 1A(2) of the Convention, this equates to a finding that the applicant did not have a nationality. The Tribunal did not actually find that Syria was the country "of his former habitual residence", but reading the Tribunal's reasons beneficially, I think that it can be taken to have so found when it stated, at paragraph numbered 1 above, that the applicant was "… formerly resident in Syria". 8 The Tribunal's findings of fact show that the applicant has spent twelve years of his life as a resident of Libya (from 1988 to 2000). The question which concerned me was whether, in those circumstances, Libya might be regarded for Convention purposes as also being the country "of his former habitual residence". 9 The current state of authority seems to be that a person may, for Convention purposes, have more than one country of former habitual residence. I agree, respectfully, with the view expressed by Lehane J in Al-Anezi v Minister for Immigration and Multicultural Affairs [1999] FCA 355 at [21] that in principle there is no obvious reason that this should be regarded as impossible. A person may have more than one nationality. The object of the Convention is to treat uniformly persons seeking refugee status and relevantly to equate nationality with country of habitual residence where a person has no nationality - see Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 421 at 427. 10 In paragraph numbered 3 of its reasons set out above it can be seen that the Tribunal, for reasons which it gave, dismissed as unfounded the applicant's claims about facing persecution in Syria by reason of his links with his father and by reason of his boat trip to Iraq when he was 12 years of age. In the next paragraph it took into account the earlier incident, which occurred when the applicant was 8 years of age, this time in conjunction with the (later) Iraq journey. At paragraph numbered 5 the Tribunal can be seen to have dealt with the involvement of the applicant's father and uncle with the PLF and, for reasons which it also gave, rejected the applicant's version of events as being simply wrong. 11 The Tribunal then turned, with an apparent degree of reluctance (see para numbered 7) to make credibility findings against the applicant in relation to the matter of the "telegraph" from Syrian security, the allegations that a person called Mohamad had denounced him to Syrian authorities and then been released and the new claim about his brother having been tortured. 12 A fair reading of the Tribunal's reasoning shows, in my view, that it addressed all of the applicant's claims and found against him in relation to each of them. This was in the context of the applicant having Syria as his relevant country of former habitual residence and claiming to be a refugee from persecution (in the past and in the reasonably foreseeable future) in that country. The Tribunal simply disbelieved the applicant's claims. As a matter of law, that was, of course, its prerogative. 13 In my view, the Tribunal did not err in law in assessing the applicant's claims to refugee status against the situation in Syria. Syria was the country of his original habitual residence and one to which the Tribunal found he had the legal right to return. This is not the situation which Lehane J considered in Al-Anezi at [22] of an applicant leaving a country of former habitual residence due to a well-founded fear of persecution in that country for a Convention reason and then residing in a second country which could be characterised as another country of former habitual residence. 14 The Tribunal did not characterise the applicant's claims in relation to Libya as being moot only because he had no right to re-enter that country. Had it done so, that would most probably have been an error of law. In the absence of any relevant third country, a refugee must surely be entitled to have his or her status assessed on the basis of what has happened to him or her in the relevant country even if he or she has no right of return to that country. But, in my view, the Tribunal did not make that error. In paragraph numbered 6 of its reasons set out above it can be seen to have regarded Syria as having greater significance in this matter i.e. as being the relevant country of former habitual residence. 15 My second concern was in relation to the Tribunal's finding that the applicant had the right to re-enter Syria. In the respondent's supplementary submissions there was fairly extensive reference to s 36(3) of the Migration Act 1958 (Cth). That sub-section provides as follows: "36(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." 16 Although the Tribunal did not refer to s 36(3) of the Act, it found that the applicant had the right to re-enter Syria. The evidence upon which that finding was made included the updated authentication of his UNRWA status, the fact that his family returned to Syria in 1994, the inclusion of his name on the family's registration and travel certificate and the independent country information. The Tribunal's finding that the applicant had a right to re-enter Syria was, in my opinion, quite clearly open to it. 17 The evidence before the Tribunal strongly supports the conclusion that this right of re-entry is a legal right in accordance with Syrian law. When the Tribunal referred to this as "the right to re-enter Syria", I think that it must (in the context of its findings) be taken to have been referring to a legal right. Foreign law is, of course, so far as this Court is concerned, a matter of fact, and the Tribunal's finding on this point is thus not open to challenge in what for this Court is a very narrow and statutorily-confined jurisdiction. Accordingly, there is no need for me to consider the respondent's submission that my decision in Applicant C v Minister for Immigration and Multicultural Affairs [2000] FCA 229 [that the "right" referred to in s 36(3) of the Act is a legally-enforceable right] "is erroneous and should not be followed". 18 The Tribunal appears, in my opinion, to have elided to some extent the two issues of, first, whether the applicant was a refugee under the Convention definition and, secondly, whether he would (regardless of being a refugee) have effective protection in Syria within Article 33 of the Convention. However, in this particular case, I do not think it has erred in law in doing so. The Tribunal's findings can be seen quite clearly to amount to a rejection of the applicant's claims to Convention-based grounds of persecution in Syria as his country of former habitual residence. They can also be seen, in particular in paragraph numbered 1 of its reasons set out above, to amount to a finding of effective protection in Syria (the Tribunal's term was "adequate protection") from harm or expulsion, even though the Tribunal made no reference to Article 33 of the Convention or s 36(3) of the Act anywhere in its reasons. 19 I was also concerned that the applicant might have had Palestinian nationality and perhaps should have been assessed in relation to that country. 20 However, I accept the respondent's submissions that the Tribunal's finding that the applicant was stateless (a finding which, in my view, was open to it on the evidence), means that it did not err in failing to consider the applicant's claims in relation to Palestine. In any event, perhaps not surprisingly, the applicant made no claims to persecution in Palestine.
Conclusion 21 It is apparent from his application and his written submissions that the applicant seeks to challenge the Tribunal's decision on the merits. This is, of course, not permissible. In my opinion, the applicant has not made out any ground of review of the class provided in s 476 of the Act. Nor have my original concerns in that respect been shown to be justified. Accordingly the application will be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.
Solicitor for the Respondent: Australian Government Solicitor
Taiem
Minister for Immigration & Multicultural Affairs