V903/00A 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 24 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 21 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 24 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 24 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 1 August 2000. On 2 October 2000 a hearing was held before the Tribunal, conducted by video facilities. The applicant had been advised by a solicitor or registered migration adviser. At the hearing the applicant gave oral expression to his claims. 6 On 24 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. These reasons should also be read with those in V853/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1016 and V854/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1017 which concerned decisions made by the same Tribunal member about Iraqi nationals who had resided in Syria. 8 Having dealt in some detail with the claims of the applicant the Tribunal made a finding adverse to the applicant in relation to his claimed fear of persecution in Iraq by reason of past events. (The applicant claimed to have been mistreated in Iraq such that he fled that country to Syria in 1997, where he remained until departing for Australia in late 1999.) This finding is not the subject of application for review. 9 The applicant claimed that he had originally entered Syria illegally and had left Syria illegally using a false Iraqi passport. He said that he had since given up the passport. The Tribunal's summary of the applicant's claims concludes as follows: He says he cannot find effective protection in Syria as [he] has no right of return to that country because he illegally entered and remained there before leaving with a bogus passport. He submits he has no "strong connections" in Syria to assist his re-entry [The Tribunal made reference to a source of information. The term "strong connections" was a reference to information about re-entry into Syria for Iraqis discussion of which occurred later in the reasons]. He claims that there has been an improvement in relations between Iraq and Syria and that has resulted in a large influx of Iraqi agents into the latter country and an increase in the number of deportations of Iraqis. … Even if he could re-enter Syria, he faces harm at the hands of those agents and the risk of being accused of being an Iraqi agent and consequent punishment. As well as the harm he might encounter in Syria, he says he might be refouled to Iraq for that reason and because he initially illegally entered Syria. In regard to refoulement to Iraq, the applicant submitted that there is conflicting country information in that regard, a consequent lack of certainty and therefore a chance of refoulement that cannot be discounted as remote. 10 The Tribunal's reasons then set out the principles of law that it saw as setting the framework of its inquiry. It did so in terms identical to those described at paras [11] to [13] of the reasons in V853/00A, supra. 11 The applicant made a number of claims, in addition to his claimed fear based on past events and family history, of fears of persecution in Iraq relating to events since his departure. These were that since his arrival in Australia, he had been caught in news footage of a demonstration outside the immigration detention centre in which he is presently held. This would inform Iraqi authorities that he had applied for asylum in Australia. He claimed that having left illegally and having remained outside Iraq for an extended, unauthorised period without reporting to Iraqi authorities, he would be at risk of mistreatment if returned to Iraq. 12 The Tribunal did not consider it necessary to address these further claims relating to Iraq. It said: In any event, there is no need for the Tribunal to come to a conclusion on the issue of the likelihood of persecution if the Applicant returns to his country of nationality as, whatever might happen to him in Iraq, the Tribunal is satisfied that he has effective protection in Syria, as discussed below. That is, he can enter and remain in that country without a real chance of being refouled to Iraq. 13 The Tribunal noted various sources of country information dealing with the situation of Iraqis in Syria. It made the following finding in relation to the applicant's exit from Iraq, entry into Syria and ability to re-enter Iraq: The record of interview when the Applicant first arrived in Australia states that he entered Syria officially, after obtaining an invitation received by telegraph. He subsequently changed that story and claimed that he entered the country illegally. However, he remained there for a significant period. He initially said that he had no trouble with Syrian authorities during his stay. Later he said he was detained and questioned and was unable to produce any documents. Nevertheless, he was released. Both of those versions of his experiences in Syria support a conclusion that he was permitted to remain in that country. The Tribunal concludes that he entered legally and was permitted to remain there. It is satisfied that the applicant presented valid documentation to border officials, including a clearance form Syrian officials that was communicated to the applicant by telegram while he was still in Iraq. If finds that he did not leave Iraq illegally, entered Syria lawfully and, if necessary, can legally return to Iraq through the same crossing. 14 Thereafter the Tribunal set out further reports concerning the situation and status of Iraqis in Syria. The Tribunal made a further finding in relation to the applicant's entry into Syria in these terms: The applicant denies he was sponsored into Syria. However, that denial is contrary to his initial explanation that he entered after receiving an invitation by telegram. As concluded above, the Tribunal is satisfied that he legally entered the country using security clearance documents that were properly issued by the Syrian authorities. It is satisfied that he provided sufficient information to establish his credentials with Syrian authorities and that when he entered Syria he was given permission to remain there. In those circumstances, the Tribunal is also satisfied that he was issued with a clearance from Syrian authorities for the purpose of entering that country. The available information indicates that, as an Arab, he was entitled to remain in Syria indefinitely. The Tribunal is satisfied that was the case and finds accordingly. 15 Having rejected the applicant's claim that he was not originally sponsored into Syria, the Tribunal said: On the basis of the available information, the Tribunal is in no doubt that the applicant can still be sponsored back to Syria by the person or the party who previously sponsored him and finds that his sponsor constitutes sufficiently "strong connections" with Syria to facilitate his return to Syria, just as that person or party facilitated his initial entry. It is satisfied that the applicant can return to Syria and be registered after further 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" [reference was made to a source of information]. It is satisfied that he can return to reside in Syria or for the purposes of transit to Iraq. 16 It stated that in coming to that conclusion, it had considered and rejected his claim that he left Syria illegally. The Tribunal was satisfied that he was given permission to leave and issued with an exit permit, that he had obtained a valid Iraqi passport through official means and that he had left Syria on it legally. It also said: Although he said he was forced to give his passport to the people smuggler, 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. [Reference was made to sources of information earlier set out in its reasons.] That is consonant with the applicant's previous legal entry in Syria without a passport. 17 The Tribunal was satisfied that the applicant could remain in Syria indefinitely and that 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 past employment at a restaurant in Damascus. It then said: The applicant submits that the cases of Thiyagarajah, Rajendran and Al-Sallal require that there be no risk of refoulement (applicant's emphasis, submissions of 9 October 2000). That submission appears to rely on the judgement in Al-Sallal, which was decided on 29 October 1999, prior to the amendments to section 36 of the Act. In particular, the part of the judgement cited at p10 above. The amendments to section 36 appear to modify the literal requirement that there be no riskof refoulement by providing that section 36(3) does not apply when an applicant has a well-founded fear of being refouled to a country where he faces persecution. In any event as discussed hereunder, the circumstances lead the Tribunal to conclude the Applicant is not at any risk of being refouled to Iraq. 18 The Tribunal was satisfied that the applicant's fears of refoulement to Iraq were not well-founded as he was not at any risk of being returned to Iraq by Syria unless, so the information indicated, he became involved in illegal activities or was considered a threat to the security of the State. There was no reason, in the applicant's case, to believe that this would eventuate. The Tribunal re-iterated that it had concluded that the applicant "had permission to remain in Syria and can legally re-enter the country and reside there indefinitely". Even if faced with deportation, he had the possibility of being able to go to a country other than Iraq, with or without the assistance of UNHCR. 19 The Tribunal's view was that 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, it found, would this transpire in the reasonably foreseeable future. It found that Iraqi asylum-seekers are secure from refoulement and 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. It noted that in the remote likelihood of the applicant being required to leave Syria, the Syrian authorities would offer him the choice of going to a third country. 20 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, 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, in a predominantly Iraqi precinct of Damascus, without being harmed or threatened by any Iraqi agents. Syrian authorities would protect him should he believe himself to be at risk. 21 The Tribunal then concluded by saying the following: The applicant had the opportunity to remain in Syria, where he was protected from persecution and refoulement to Iraq. He had the opportunity to seek protection in another country, through the auspices of the UNHCR. However, he chose not to remain in Syria nor to seek available, alternative protection, and says he has discarded documents that could help him re-enter Syria, such as the Iraqi passport he used to exit that country. In the context of the amendments to section 36 of the Migration Act (see pp 9-10, above) and the particular facts of this case, the applicants departure from Syria to seek asylum in Australia is at odds with the spirit and clear parliamentary intention of those amendments, which are clearly aimed at preventing forum-shopping among asylum seekers. In any event, he is in a situation where he can still return to Syria by arranging renewal of his sponsorship through his previous sponsors or the contacts he has stated he has in Syria. In that respect he told the delegate about contacts in the Army, albeit not senior officials, and fellow employees. In all of the circumstances, the Tribunal finds that as a matter of practical reality and fact, effective protection is available to the applicant in Syria. He stated that he had never had difficulties with the authorities in that country (apart from being questioned at census time) and the Tribunal is satisfied that he does not face persecution at the hands of Syrian officials or Iraqi agents in Syria. In summary, the Tribunal is satisfied that the applicant has effective protection in Syria, as he can re-enter that country, resume residence on an indefinite basis and would not be at risk of being refouled to Iraq. It is satisfied that he does not have any well founded fears of persecution in Syria. In conclusion, it is not satisfied that he is a person to whom Australia has protection obligations and finds that he does not meet that criterion for the purposes of the grant of a protection visa. [Emphasis added] 22 The applicant submitted that the Tribunal had misconstrued subs 36(3) in the same way as discussed in V856/00A, supra. I agree with that submission. However in my view a reading of the decision of the Tribunal is that it expressly approached the matter from the perspective of subs 36(3) and, separately, by an analysis under Article 33. That, in particular, is how I read the passage cited in para [21] above, the part emboldened indicating the Article 33-based conclusion. 23 Counsel for the applicant conceded, quite properly, that if that were the correct way to view the reasons, then this matter fell into the same category as V853/00A and V854/00A - that the application could only succeed if I was of the view (which I am not, see paras [58 -74] of V856/00A) that it is a precondition for an analysis under Article 33 to deny protection obligations for there to be a right to enter the safe third country. 24 In these circumstances and for these reasons the application should be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.