V853/00A v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 In this matter the applicant seeks an order for review by the Court of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 5 October 2000, in which the Tribunal affirmed the decision of a delegate of the respondent Minister refusing the grant of a protection visa under the Migration Act 1958 (Cth) (the Act). 2 The applicant is a national of Iraq. He arrived in Australia by boat on 11 February 2000 without a valid entry permit. He was placed in immigration detention, where he remains. On 1 June 2000 he applied for a protection visa under the Act. 3 The applicant has been identified by a number in order to maintain as far as possible his anonymity. 4 By letter dated 14 July 2000 a delegate of the Minister informed the applicant that his application for a protection visa was refused. The reasons for that refusal were recorded in writing and dated 14 July 2000 and reflected a decision by the delegate that the applicant was not a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Convention). 5 The applicant sought review of that decision in the Tribunal by application made on 19 July 2000. On 2 October 2000 a hearing was held before the Tribunal, conducted by video facilities. The applicant had been advised or assisted by a solicitor or registered adviser. At the hearing the applicant gave evidence. 6 On 5 October 2000 the Tribunal handed down its decision to the effect that the applicant was not entitled to a protection visa. It is this decision in respect of which the applicant now seeks review. 7 This matter was heard in Adelaide between 25 and 29 June 2001 together with a number of other matters, all involving nationals of Iraq who had been in Syria for various periods of time. Common legal issues arise in the applications. I have set out in V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018 my views on these common legal issues, being the proper construction of subs 36(3) of the Act, the continuing relevance of Article 33 and its consequences for any analysis of whether protection obligations exist for the purposes of subs 36(2) of the Act and the question of relief where there has been error on the part of the Tribunal demonstrated. These reasons should be read in conjunction with my views expressed in V856/00A, supra. 8 The Tribunal's reasons commence by recounting what it saw as the applicant's case before it. He claimed to have fled from Iraq to Syria in July or August 1999, where he remained until departing for Australia in January 2000. The Tribunal did not consider it necessary (for reasons that it explained) to consider those claims of fear of persecution based on the applicant's past experiences in Iraq, save to the extent that these related to the circumstances of him having entered Syria from Iraq. In essence, and apart from past experiences, the applicant's claimed fears in relation to any return to Iraq were that he would now stand accused of being a member of an opposition party; that Iraqi agents in Damascus would have noted his visit to that party's offices there; and that other people associated with the party have been targeted. His fears of harm upon any return to Iraq were exacerbated because, he claimed, he left Iraq illegally, has now made a refugee application, and has been noted on television demonstrating in Australia. 9 The Tribunal stated that it did not consider it necessary to make any findings in relation to Iraq because it was satisfied that the applicant has "effective protection" in Syria. 10 The Tribunal's summary of the applicant's claims concluded as follows: The Applicant submits that he does not have effective protection in Syria. He says that he has no right to re-enter that country, as he entered and departed illegally with a false passport that wrongly states his occupation. He cites another [Tribunal] decision …where it was found an applicant had left Syria illegally with the help of a people smuggler and would face detention and refoulement if returned to Syria. He submits that he does not have "strong connections" in Syria with the Al Dawa Party or the AIP [another Iraqi party] and therefore would not succeed in obtaining permission to re-enter. [The submission with which the Tribunal was dealing relating to the existence or otherwise of a strong connection with Syria was, I infer, making reference to country information set out at length later in the Tribunal's reasons.] Given that [a Syrian government source, mentioned in country information quoted by the Tribunal] has stated that each application for return to Syria would be treated on its merits, there is insufficient certainty that he could successfully return. Even if he was permitted to re-enter Syria, the Applicant states that he might be attacked by Iraqi agents because of his opposition connections. In addition, he might be suspected by Syrian authorities as an Iraqi agent, as such people have entered as merchants, and that adds to the chances that he would be refouled to Iraq, where he faces persecution. Further, the Syrian authorities do not protect Iraqis, as evidenced by the success of Iraqis being resettled in other countries by the UNHCR. 11 The Tribunal then set out what it considered to be the legislative framework and the applicable legal principles. It noted in unremarkable terms those provisions of the Act governing the identification of persons to whom Australia owes protection obligations under the Convention. The Tribunal then said: While Australia generally has protection obligations to persons who are refugees as defined in Article 1 of the Convention, some circumstances may arise where Australia does not owe protection obligations to a person who may be a refugee, because they have "effective protection" in a third country. That is, Australia will not be in breach of its obligations under the Convention if it returns a refugee to a "safe third country" (see below) For the purposes of this application, Australia has protection obligations to the Applicant if he does not have effective protection in a third country and he demonstrates that he is a person who is a refugee as defined in the Refugees Convention. 12 The Tribunal continued: While Australia generally has protection obligations to persons who are "refugees" as defined by Article 1 of the Convention, Australia will not be in breach of its obligations under the Convention if it returns a refugee to a "safe third country" without breaching Article 33 of the Convention. 13 The Tribunal proceeded to set out Article 33 and the amendments to s 36 of the Act that inserted subss (3) to (5) into that section. It devoted some attention, by reference to the legislative history of the amendments, to what it understood the purpose and effect of these amendments to have been. It referred to Al-Rahal v Minister for Immigration and Multicultural Affairs [2000] FCA 1005 and Minister for Immigration and Multicultural Affairs v Al Sallal (1999) 84 FCR 549 as being decisions of the courts that it understood as explanatory of the principles involved in assessing "effective protection". 14 The Tribunal then set out its findings on the applicant's claims. It rejected the claim that the applicant had left Iraq on a passport issued in a false name. It found that it was likely that the applicant left Iraq legally using the passport issued in his own name. However, it said, it had not considered it necessary to further pursue his claims to fear persecution in Iraq, nor the circumstances of his departure from there. 15 The Tribunal set out, over a number of pages in its reasons, information relevant to the situation of Iraqis in Syria, noting that the situation of Iraqis in Syria had been investigated over a significant period. 16 Having set out this independent information, the Tribunal proceeded to set out its findings on the balance of the applicant's claims relating to any return to Syria, rather than to any fear of persecution in Iraq as such. 17 The Tribunal found, in essence, that the applicant had originally entered Syria legally, was entitled to remain there indefinitely once he had done so, and had left Syria by legal means. 18 Importantly, for present purposes, the Tribunal then expressed a finding in these terms: On the basis of the available information, the Tribunal finds that the Applicant can still be sponsored back to Syria by the party or person who previously sponsored him, or through his Al Dawa connections, and finds that he still has sufficiently "strong connections" with Syria to facilitate his return. In arriving at that conclusion, it notes his claim that he was previously a member of Al Dawa in Iraq. Even though he was not active with that organisation in Syria, he made contact with it in Damascus, attended its offices and obtained a letter to support his application to the UNHCR. He was able to successfully obtain a sponsorship and security clearance to enter Syria previously and he left the country legally. Given his connection with Al Dawa and the AIP, together with his previous legal entry and departure, the Tribunal is satisfied that he could arrange a further invitation for entry to Syria. It is satisfied that the Applicant can return to Syria and be registered after screening by the Syrian government, that would demonstrate he "has not committed a crime and is not engaged in any activities contrary to the interests of the Syrian government" [a reference to material in the country information]. 19 The Tribunal, reiterating its finding that the applicant legally entered and left Syria, then said: The Tribunal notes the comments of General Hariry [of Syria's Ministry of the Interior, Immigration section] and is satisfied that the Applicant's legal entry to, and departure from, Syria and his "strong connections" in that country, in the form of a connection with Al Dawa, are a sufficient basis on which he can re-enter. Further, the available information leads to the conclusion that the Syrian authorities are willing to make arrangements whether or not a particular person has a passport [see, in particular, the statements of Mr Jasmin of UNHCR, in February 2000 and General Hariry]. Thus, the fact that the Applicant no longer has his Iraqi passport does not preclude his re-entry to Syria. 20 The Tribunal was satisfied that the applicant could remain in Syria indefinitely and would not be at risk of being returned to Iraq by Syrian authorities. The available information indicated that once the applicant entered Syria he would have access to services such as housing, medical care and education that the authorities also effectively permit employment, as was demonstrated by the applicant's own activities. 21 The Tribunal concluded: In summary, the Tribunal is satisfied that the Applicant can re-enter Syria, resume residence on an indefinite basis and would not be at risk of being refouled to Iraq. Nor does he have a well-founded fear of persecution in Syria. It finds that as a matter of practical reality and fact, effective protection is available to the Applicant in Syria. He is not, therefore, a person to whom Australia has protection obligations and does not meet that criterion for the purposes of the grant of a protection visa. 22 Counsel for the applicant did not seek to challenge in any way the findings of fact as to the past legal entry to, legal ability to thereafter reside in, and subsequent legal exit from, Syria. It is necessary to turn now to consider the particular basis on which the decision is challenged. 23 The Tribunal, to the extent that it relied on subs 36(3), fell into error in equating "right to enter" for the purposes of that subsection with capacity to enter. 24 However, counsel for the applicant recognised that the Tribunal undertook an analysis based on an Article 33, of the kind discussed at length in V856/00A, supra. Findings were made that the applicant can now return to Syria underpinning that analysis. 25 By reason of that recognition counsel conceded, quite properly in my view, that if I rejected his submissions on the need for some right to enter as a precondition for an analysis under Article 33 denying protection obligations (which I do, see paras [58 - 74] of V856/00A, supra)the application must be dismissed. 26 In those circumstances the application should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.