V854/00A 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 16 December 1999 without a valid entry permit. He was placed in immigration detention, where he remains. On 13 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 13 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 13 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 29 September 2000 a hearing was held before the Tribunal, conducted by video facilities. The applicant had been advised by a solicitor or migration agent. 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 Having described the applicant's claims the Tribunal then set out what it considered to be the legislative framework and the applicable legal principles. It did so in identical terms to those described at paras [11] to [13] of my reasons for judgment in V853/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1016, with which (for these purposes) these reasons should also be read. 9 The Tribunal's findings were as follows. It accepted that the applicant had entered Syria in August 1997 and had remained there until he departed for Australia in October 1999. Noting some confusion in the applicant's evidence concerning his identity documents, the Tribunal expressed satisfaction that the applicant arrived in Australia with his Iraqi national identity card but no longer had possession of identity documents. Before stating that it did not consider it necessary to assess the applicant's claims in relation to his experiences in Iraq because it was satisfied "that the applicant has effective protection in Syria", the Tribunal found that the applicant left Iraq legally and entered Syria legally, using his Iraqi identity card. The Tribunal found that while the applicant had claimed that he had no sponsorship to enter Syria, it was satisfied (on the basis of an earlier submission that a telegraph had been sent to the border post to facilitate entry) that that telegraph had been as a result of sponsorship of him to enter Syria and a security clearance provided by Syrian authorities. 10 There followed in the Tribunal's reasons the setting out of various reports and sources of country information at some length, dealing with the situation of Iraqis in Syria. 11 Having found that the applicant had entered Syria legally and had left it by legal means, the Tribunal then said: 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 the cousin who wrote a letter on his behalf and with whom he has previously stayed, and it finds that he still has sufficiently "strong connections" with Syria to facilitate his return. 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". While he says he dealt with illegally imported goods, the Tribunal is satisfied, as discussed above, that his involvement in that activity was not perceived to be sufficiently serious to attract any other sanction that confiscation of the goods. The Tribunal accepts that the Applicant may have resorted to an agent to obtain an Iraqi passport for him in Damascus, but it is satisfied that he obtained and used a genuine passport issued by the appropriate authorities and legally entered and left Syria. The Tribunal notes the comments of General Hariry [of the Syrian Ministry for 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 his resident cousin, 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. 12 The Tribunal continued by expressing satisfaction that the applicant could remain in Syria indefinitely and would not, unless he became involved in illegal activities, 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, and that the authorities also effectively permit employment, as was demonstrated by the applicant's own lucrative business activities in the Damascus market. 13 The Tribunal found that the independent information did not support a conclusion that relations between Iraq and Syria had altered in a way that would result in the deportation of Iraqis to their country of nationality nor that this would transpire in the reasonably foreseeable future. It found that Iraqi asylum-seekers are secure in Syria from refoulement to Iraq. While some persons had been deported, the applicant was not likely to suffer the same fate as he had not been charged or convicted of any criminal activity, had documentation with which to identify himself and "a history of legal residence in Syria". The Tribunal also found that it would be open to Iraqis (such as the applicant) to approach UNHCR for protection from forced return to Iraq, if they still feared or were at risk of persecution there, should the situation between the countries alter. In what it found to be the remote likelihood of the applicant being required to leave Syria, the Tribunal noted the Syrian authorities would offer him the choice of going to a third country. The Tribunal concluded that there was no real chance of the applicant being returned to Iraq. 14 On the applicant's claims that he feared that he would be harmed by some of the increasing number of Iraqi agents operating in Syria or by Syrian authorities who suspected him of being such an agent, the Tribunal found that the available information did not support the view that Syrian authorities would tolerate the operations of foreign intelligence agents in Damascus. Also, the applicant had resided in Syria during the period of alleged improved relations without being any indication that he was suspected as an Iraqi agent, or harmed or threatened by any Iraqi agents. There was no real risk of harm or chance of persecution on such suspicion or at the hands of such agents. 15 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. He does not 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. 16 The Tribunal employed reasoning based on both subs 36(3) and on an analysis under Article 33. For reasons set out in V856/00A, supra, the application of subs 36(3) was flawed. 17 As in V853/00A, supra, the only submission advanced by counsel for the applicant in this matter was that for it to be able to be concluded that Australia did not owe protection obligations to someone who was otherwise a refugee because that person could be returned to a country which provided effective protection, without breach of Article 33, that person had to have a legally enforceable right or at least a right of some kind to enter that "safe" country: see generally V856/00A, supra, and V853/00A, supra. 18 Counsel for the applicant conceded, quite properly, that if an analysis based on Article 33 does not require there to be a right of (re-)entry to the third country before it can be said that Australia does not owe protection obligations (as in my view it does not), then in view of the findings made and the differentiated approaches under both subs 36(3) and Article 33 the application was liable to be dismissed, there being no apparent error of law made in that analysis. 19 For the reasons I have set out in V856/00A, the effect of the various authorities and materials on Article 33 is that, in my view, it is not a precondition for an analysis based on Article 33 to deny protection obligations that the claimant has a right to enter Syria. 20 In these circumstances the application should be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.