V872/00A v Minister for Immigration and Multicultural Affairs

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 9 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 29 November 1999 without a valid entry permit. He was placed in immigration detention, where he remains. On 3 March 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 7 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 7 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 11 July 2000. On 3 October 2000 a hearing was held before the Tribunal. At the hearing the applicant gave evidence. 6 On 9 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 recount what it saw as the applicant's claims of a fear of persecution should he be returned to Iraq. It is unnecessary to set these claims out in detail as the Tribunal did not find it necessary to deal with them as it was of the view that Australia did not owe the applicant protection obligations by reason of his ability to return to Syria. 9 In setting out its findings the Tribunal commenced by stating the following: Since the applicant lived in Syria for around fifteen years prior to coming to Australia the first question that arises in this case is whether the applicant has effective protection in Syria. As stated above recent amendments to section 36 of the Act are relevant in this regard. These provisions followed the development of a considerable amount of case law in relation to effective protection. 10 The Tribunal then referred, in elaboration of its understanding of "effective protection", to Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526, Minister for Immigration and Multicultural Affairs v Kabail (1999) 93 FCR 498, Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 and Al Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443; (1999) 58 ALD 663. 11 The Tribunal then set out subss 36(3), (4), and (5) of the Act, being the amendments to s 36 inserted in 1999. (I do not set out the subsections here, nor explain their history or effect. For these purposes I refer to my reasons for judgment in V856/00A, supra, with which the present reasons must be read.) In its reasons the Tribunal introduced these amendments to s 36 by saying that s 36 contained provisions of relevance to the issue of effective protection. It said "these amendments apply to this application". It then stated as being relevant to the issue a large body of country information, which it set out, on the status of Iraqi nationals in Syria and of the extent of their ability to enter that country. 12 The Tribunal's findings in relation to Syria then followed. It found that if the applicant returned to Syria he would not be at risk of being refouled to Iraq; he had "availed himself of effective protection in Syria for fifteen years". It said this: The applicant spent the last fifteen years living in Syria. He lived there for a significant period in the same house and worked as a goldsmith or jeweller for most of this time. He married there and his wife and children lived there for many years. His oldest son went to school there. The country information above indicates that Iraqis, once they enter Syria, are allowed to remain there and there is no risk of the applicant being refouled to Iraq. The applicant has claimed that there has been a thawing of relations between the two countries but the country information above indicates that there has not been. It is clear from the country information that only those found to have committed crimes are sent back to Iraq. As a result the Tribunal finds that the applicant if he returned to Syria is not at risk of being refouled to Iraq. He availed himself of effective protection in Syria for fifteen years. The applicant has pointed to a number of assassinations. However the country information from DFAT in February of this year indicates that there has been no normalisation of relations between Iraq and Syria and the Syrian Intelligence would know of and not tolerate the presence of any foreign intelligence. Given that the applicant has been in Syria for fifteen [years] without having any problems himself from Iraqi intelligence, the Tribunal does not accept that there is any real chance he will face any problems should he return. Further his account of his history in Syria does not satisfy the Tribunal that he was at any risk of refoulement or that he had a well founded fear of persecution for a Convention reason in Syria. The Tribunal considers the position the same if he returned now. That is, the Tribunal is not satisfied that there is any real chance the applicant will face persecution in Syria or that he will be refouled to Iraq. 13 Then followed the findings upon which the applicant's submissions before me were primarily directed: The country information indicates that in order for an Iraqi to enter Syria now the person has to be sponsored. It states that in order to return to Syria the same procedure applies. As the applicant has spent fifteen years in Syria the Tribunal is satisfied that he would be able to arrange the necessary sponsorship to enable him to return. Another report from a conversation with a General Hariry indicates that Syria will only accept back those who are married to a Syrian or have a strong connection with Syria. Strong connection may well simply mean someone to sponsor the applicant as occurs with current arrivals from Iraq. Whilst the evidence is that the applicant is married to an Iraqi, the Tribunal is satisfied that his presence in Syria for fifteen years indicates that he is someone who would be considered to have a strong connection with Syria and also indicates to the Tribunal that he would be able to arrange the necessary sponsorship. Further whilst the application claims that he departed on a false passport, the applicant was able to leave Syria and travel to Australia through a number of countries without any apparent difficulty. As a result the Tribunal is not satisfied that the applicant departed Syria illegally. Taking all of these matters into account, the Tribunal is satisfied that the applicant will be able to re-enter Syria to resume effective protection there. As stated above the Tribunal has to apply the amendments to Section 36 in this case. For the reasons given above, the Tribunal finds that the applicant as a matter of practical reality and fact has a right to enter and reside in Syria and resume effective protection there. The Tribunal is also satisfied that the applicant does not have a well-founded fear of persecution for a Convention reason in relation to Syria. The Tribunal also finds that there is no real chance he will be refouled by Syria to Iraq. Therefore he does not have a well founded fear that he will be refouled to Iraq. As a result of these findings it is not necessary to consider the applicant's claims in relation to Iraq. The Tribunal finds that the applicant has a right to avail himself of the protection of Syria and therefore is not someone to whom Australia has protection obligations. 14 It is plain that the Tribunal saw as relevant and important the application of subs 36(3). It is also plain that the Tribunal found that subs 36(3) applied in the circumstances before it which, properly understood, were matters of capacity not right in the sense discussed in V856/00A, supra. Thus, there was error in the application of subs 36(3). 15 However, I think that the Tribunal also had regard to Article 33 and that, whether through a framework which included a misapplication of subs 36(3) or not, it directed itself squarely to the question of whether the applicant could return or had the present capacity to return to Syria and, having so directed itself, found that he could now return. 16 No issue of the applicant being unwilling to exercise that capacity arose. 17 The applicant pointed out that there was no express finding of legal entry. It was then submitted that legal entry was of significance because, without it, re-entry could not be obtained. However, given that he had been in Syria for fifteen years openly and without impediment carrying on a normal life it was open, it seems to me, for the Tribunal to make a finding about capacity to re-enter without examining the minutiae of the legality or otherwise, of his entry. The finding was that sponsorship was required - sponsorship was available; strong connections were required - strong connections were found. He was found to be able to return. Findings were made which were open to be made. This is a request for those findings to be changed taking into account other evidential matters. 18 For reasons of the kind discussed in para [79] of V856/00A, supra, I would affirm the decision even though it contains an error of interpretation. This is especially so since the Tribunal was clearly mindful of an analysis based on Article 33 being available and that analysis, in an intermingled way, pervades the whole decision. 19 The application should be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.