W228 v Minister for Immigration & Multicultural Affairs

The Tribunal's Reasoning 14 The Tribunal accepted that the applicant's brother had been executed by the Iraqi regime in 1985 as a result of accusations that he was a member of the Al Da'wa Party. Although the applicant was questioned he suffered no further consequences apart from being told to report any information that he might have and being moved to a part of his military unit which was back from the front lines. He was also made to sign a document agreeing that he would not have any funeral service for his brother or speak about his Shia religion or talk against the government. His sister-in-law, the wife of his executed brother, was harshly treated by Iraqi authorities. The Tribunal also found that the applicant was harassed by Iraqi authorities who took electrical appliances from his store without paying for them. It accepted that he avoided military service in the 1991 invasion of Kuwait and concealed that from authorities by bribing an official to provide him with a discharge and that he suffered no adverse consequences. It accepted that in 1995 two of his nephews were suspected of involvement with Al Da'wa and that he was again questioned for a period of about three hours and then released. Subsequently he sold his properties openly, using appropriate government channels and paying taxes on those properties as required by law. He obtained Iraqi passports from the passport office by payment of a bribe. His account of his experiences in Iraq up to 1995 were regarded by the Tribunal as "plausible" and accepted as fact. 15 The Tribunal concluded, however, that Iraqi authorities were satisfied, in 1995, that he was of no interest or concern to them even taking into account that his brother had been executed and that he had been interviewed in 1985 in that regard. He would not have been on a wanted list, nor would his name have been sent to border checkpoints. He would not have been prevented from obtaining a passport and the passports he did obtain were from a passport office in Baghdad. He paid a bribe to obtain them but that was consistent with the corruption of officials. A bribe would expedite their issue. There was advice from the Department of Foreign Affairs and Trade consistent with that finding. Given the regime's extreme actions against anyone suspected of political involvement, the Tribunal did not accept that the passport official would have provided passports to someone wanted by the authorities as doing so would have severe consequences for him were it traced back or if the applicant were caught and forced to reveal his identity. Moreover, the applicant left Iraq openly after having sold his property and business. The Tribunal did not accept that the applicant used a false name or left Iraq illegally or that there was any need for him at that point to conceal his identity. Moreover he found that had the applicant remained in Iraq he would not have faced a "real chance" of persecution for a convention reason. He had no association with the Al Da'wa Party and his association with both his brother and his nephews had been checked to the satisfaction of the authorities. 16 Nevertheless the applicant and his family had left Iraq and had remained out of the country for a prolonged period and then applied for refugee status in Australia. The Tribunal has said it had a range of independent information concerning the monitoring of Iraqi emigres and the consequences of applications for refugee status. Reference was made to an opinion of the United Nations High Commissioner for Refugees that asylum seekers who have applied for asylum abroad will be endangered in case of their return to Iraq. If Iraqi authorities have information that any Iraqi national returning to Iraq has sought asylum in a western country he will be interrogated and punished. A Department of Foreign Affairs' cable dating back to October 1997 referred to concerns that the very act of applying for refugee status or citizenship of another country is regarded by the Iraqi regime as political treason and that persons who so apply face the death penalty on their return. 17 The Tribunal, having regard to this and other country information, was satisfied that given the applicant's brother's background and the more recent situation in regard to his nephews, his application for a protection visa in Australia could lead to a suspicion that he was a person opposed to the regime. The Tribunal also accepted the independent evidence advising that there is monitoring of Iraqis overseas and that there was a real chance that his presence in Australia could become known to Iraqi authorities and would certainly become known if he returned to Iraq from Australia. That being the case the Tribunal found it could not dismiss as remote or insubstantial any chance that the applicant could face adverse consequences amounting to persecution in Iraq. There was therefore a "real chance" of persecution for reasons of political opinion or a political opinion imputed to him. 18 Having so found, the Tribunal moved on to consider whether or not the applicant would have effective protection from the apprehended harm by being able to remain in a third country without risk of refoulement and, if so, whether or not he could return. 19 In relation to Jordan, the Tribunal found the applicant and his family could not return to Jordan and if they did they could not remain there. That finding is not in issue and there is no need to further consider it. 20 The Tribunal then focussed upon the situation of the family in Syria. It observed that the applicant had provided a history of family members entering and remaining in Syria. One of his nephews had been there in 1996 and went to America. His sister and one of her sons entered Syria from Iran and remain there to the present. The applicant himself claimed to have entered Syria together with his whole family through the sponsorship of someone from the Al Da'wa Party. In describing his entry to Syria the applicant had said in a prepared statement: "In Jordan we met someone from Al Dawa Party who could arrange a letter of sponsorship from the party office in Syria. We entered Syria on the 3rd of March 1998. We stayed there for one year and eight months. Once you enter Syria you can only stay there for a short period of time. It is only a visitor's visa. One week after entering Syria Iraqis are required to report to the Mukhabarat's office. I informed them that I was there…." In an interview with a departmental officer, the applicant had said he was sponsored by a man from the Al Da'wa Party and that when he returned from Indonesia in 1999 to Syria he used that same man. This claim was said by the Tribunal to be consistent with a range of independent information that Iraqis as Arabs may enter and remain in Syria indefinitely but, for security reasons, must be sponsored by a relative, friend or member of an opposition party. The independent information indicated that sponsorship is a simple and straightforward process. The Tribunal preferred that advice to the applicant's more recent claims that he had difficulties in securing re-entry and could only do so by paying for his sponsorship. The Tribunal decided this recent account of difficulties was fabricated in an attempt to indicate that the applicant had problems entering Syria and would have problems returning. It found that he had legally entered Syria and by his own account obtained an exit clearance on both occasions that he left the country. 21 The Tribunal accepted independent evidence provided by the UNHCR Protection Officer in Damascus to the effect that all Iraqis are screened by security authorities in Syria. It also accepted independent advice to the effect that there is an office for registration of Iraqi nationals in Syria. Accordingly it found that the applicant and his family were legally living in Syria, having registered and been sponsored by a member of the Al Da'wa Party and were able to remain indefinitely without risk of refoulement. By his own account and that of his son he had operated a tailor's shop in a suburb of Damascus and had continued to do so without facing any problems up until he left Syria. He had rented the premises from a Syrian and operated the business openly. The Tribunal also found that the applicant's daughter, sister and nephew are still in Syria and the late claim he had lost contact with them had been fabricated for the purpose of indicating that he had no family connections there or that they had experienced some problem and that there were no family members to sponsor him into Syria. 22 In relation to the ability of the applicant and his family to return to Syria and to be protected from persecution in Iraq, the Tribunal mentioned a range of sources including the Department of Foreign Affairs and Trade and the United Nations High Commissioner for Refugees which had advised that Iraqis may enter and live in Syria subject to a security clearance being sponsored by a friend, relative or member of an opposition party. The Tribunal's reasoning then proceeded as follows: "[The applicant] has demonstrated that he and his family were able to enter, exit, work and live in Syria for an extended period which was only limited by their own decision to leave. Further, the Applicant chose to exit legally and, when his attempt to travel to Australia failed, to return using the sponsorship of the same person who had sponsored him previously from Jordan to Syria. Since I have found that he and his family left the country legally in December 1999 I am of the opinion that he and the members of his family could re enter as the Applicant did before." 23 The Tribunal referred to a statement by a Syrian official reported in one of the country information documents to the effect that re-entry would be considered on a case-by-case basis. The Tribunal saw this as merely a government official making a statement on behalf of the government. No official from any state would make an open statement that any and all persons in the relevant class would be able to re-enter. Such officials would always safeguard themselves by saying that each case would be considered individually. However, given the applicant's history of entry, exit and re-entry from overseas, the Tribunal was satisfied that he and his family could return to Syria. He has a sister, daughter and nephew still in Syria and is in a position to arrange a sponsorship or clearance to enable him to return. The Tribunal said: "I find that the Applicant has lived legally in Syria and that he has had two security clearances for departure from Syria. I am therefore satisfied that the Syrian authorities have found that he has broken no law in the country and that he and his family could return." Reference was made to the applicant's fears about the situation in Syria because of the improvement in relationships between Syria and Iraq and the alleged entry of Iraqi intelligence personnel into Syria. The Tribunal preferred independent advice to the effect that while trade and economic relations have improved, there is no change in political relations and that opposition parties and Syrian authorities do not consider Iraqi residents of Syria to be at risk. The Tribunal found the applicant to have significant connections with Syria, a country he had lived in legitimately from March 1998 to December 1999. It was satisfied that he did not face a real chance of being targeted by Iraqi intelligence in that country and that he and other members of his family could return to Syria and remain away from any persecution they might face in Iraq without any risk of being returned to that country. The Tribunal was therefore not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and that the applicant did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) for a protection visa. No specific Convention claims were made on behalf of his wife and children and there was no basis on which the Tribunal could be satisfied that they were refugees. The fate of their application would therefore depend on the outcome of the applicant's.

Application for Review 24 An application for review of the Tribunal's decision was filed in this Court on 20 December 2000. When the matter came on for hearing the applicant was represented by Mr Christie and the application was amended by leave in accordance with a Minute of Proposed Substituted Application filed on 19 June 2001. The grounds of the application are as follows: "5a) The Tribunal failed to observe the procedures required by s 424A of the Migration Act in that it failed to give to the Applicant particulars of any information that the Tribunal considered was part of the reason for affirming the decision that is under review. PARTICULARS i. The Tribunal relied on the material contained in the application for a protection visa by the Applicant's son Ramy Jassim Hadi Al Abbadi that he worked as a tailor for the family business in Damascus in support of the Tribunal's finding that the Applicant rented the business premises from a Syrian and operated the business openly and the Tribunal's rejection of the Applicant's claim that he did so under the name of a Syrian. ii. The Tribunal did not ensure, as far as was reasonably practicable, that the Applicant understood such evidence was relevant to the review; and did not invite the Applicant to comment on it. b) The Tribunal erred in law in determining that, notwithstanding that the Applicant was a refugee from Iraq, Australia did not owe him or his family protection obligations, in that it failed to address the correct questions; namely whether the Applicant and his family had the right to return to Syria and whether in practice Syria would accept the return of the Applicant and his family from Australia to Syria. PARTICULARS i. The Tribunal failed to consider and determine whether the Applicant and his family had a legally enforceable right to return to Syria. ii. The Tribunal failed to consider whether the Syrian government would permit the return by the Australian authorities of the Applicant and his family, as Iraqis who had previously lived in Syria, alternatively how it believed such return could occur without the Syrian authorities being aware the Applicant and his family were being returned by the Australian authorities. c) The Tribunal erred in law in applying the test as to the criteria for a safe third country. Syria could not be considered a safe third country without evidence that such country would accept the return of the Applicant and his family from Australia or at least that there was no more than a remote chance that the Syrian authorities would refuse to accept the return of the Applicant and his family. In all the circumstances the Tribunal was bound to make enquiries with the Syrian authorities. d) The Tribunal erred in law applying the test as to the criteria for a safe third country. Syria was not a safe third country having regard to the evidence that Syrian authorities did not recognise refugees either by law or in practice and that Syria refouled Iraqis who committed offences irrespective of the seriousness of such offences. e) There was no evidence or other material to support the Tribunal's finding (if such finding was made), that persons in the circumstances of the Applicant and his family could be returned by the Australian authorities to Syria. PARTICULARS i) In order to determine and that the Australia did not owe protection obligations to the Applicant and his family (as refugees from Iraq), the Tribunal was required by law to determine that Syria was a safe third country and that in turn required the Tribunal to determine that the Syria would accept the return of the Applicant and his family to reside in Syria. There was no evidence or other material before the Tribunal that Syria would accept the return of the applicant and his family in their current circumstances; alternatively (sic) ii) The Tribunal based its decision on the fact that the Syrian authorities would accept the return of the Applicant and his family or at least that the Syrian authorities would consider each matter on a case by case basis. That fact did not exist. Major General Mohammed Hariry Director of Immigration and Passports Department Ministry of the Interior had informed the Respondent on 21 or 22 March 2000 that the Syrian authorities would only accept the readmission of Iraqis to Syria where they were still married to Syrian nationals who still lived in Syria or had other strong connections to Syria, that those were the only Iraqis who would be considered and that those cases would be considered on their merits. The Applicant and his family did to come within either of the categories referred to by General Hariry; (sic) iii) The Tribunal based its decision on the fact that the Respondent had reported in Document Cisnet CX40584 of 16 March 2000 that the Applicant and his family could return to Syria by means of a UN Document or an Australian Travel Authority, which would be accepted by the Syrian authorities. That fact did not exist. The Respondent's report referred to the use of such travel documents for the return of Syrian nationals."

Failure to Observe Procedures 25 The first ground of the application depends upon s 424A of the Act which provides: "424A(1) Subject to subsection (3, the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it." Subsections (2) and (3) are not material for present purposes. 26 Under the heading "The Situation of the Family in Syria" in the Tribunal's reasons for decision, it found that he and his family were legally living in Syria having registered and been sponsored by a member of the Al Da'wa Party and were able to remain indefinitely without risk of refoulement. The Tribunal reasons then went on: "By his own account and that of his son, Ramy, he operated a tailor shop in a suburb of Damascus and continued to do so without facing any problems up until he left Syria. Although he has claimed that he did so by using a Syrian person's name I find that he rented the premises from a Syrian and operated the business openly." 27 It was submitted for the applicant that in making these findings, the Tribunal rejected his evidence that he was not entitled to work and operate a business in Syria and that he had done so illegally using the name of a Syrian citizen. In support of that conclusion the Tribunal is said to have relied upon a statement from his son, whose claim was handled separately from his claim, apparently to the effect that the applicant had operated a tailor shop without facing problems. Whether or not he could work legally in Syria was potentially a very important issue in the Tribunal's ultimate determination concerning which there was conflicting country information. 28 It was the case, however, that on 19 September 2000 the Tribunal member wrote to the applicant in the following terms: "Dear Sir, Subject: Mr Jasem Al Abbady As you are aware I noted that your son, Mr Ramy Jasim Hadi Al Abbadi was not available as a witness at your hearing. As he was living with you in Iraq, left with you and stayed with you in Syria and then arrived in Australia two months before you I am of the opinion that his claims and evidence may be relevant to your case. As was found at the hearing he is represented by a different solicitor to you and the other members of your family. I have instructed my case officer to obtain his departmental file from the Department of Immigration and to advise his solicitor accordingly. Once I have had the opportunity to consider the material in that file, particularly his first interview with the department and any statutory declaration he has made through his representative, I will decide whether or not I wish to interview him in your presence. As soon as I have considered the material in regard to him I will advise you and your representative of any intention to interview or to put anything which may be adverse to your case to you." 29 Having obtained a copy of the son's application and interview details, the Tribunal again wrote to the applicant on 16 October in the following terms: "Dear Mr Al Abbady Subject: N00/34388 Mr Al Abbady Jassem and others The Tribunal has obtained a copy of your son's application and interview details and the Member instructs me to inform you that he has considered them closely. The Member has not forwarded those details on to you as he instructs there is nothing of an adverse nature or, anything of significant variance to the details you have provided. (In that regard he advises his details are of benefit to you). The Member instructs me to inform you that he is still considering the adverse information he put to you in regard to Syria and your status in that country. In that regard he instructs me to inform you that, in addition to the material he has already discussed with you he is considering the information in the attached document (CX40584). As discussed previously the Member will take into account any further material you may wish to submit in period to be discussed by the Member and your adviser on your adviser's return later this week." 30 The applicant's statement relevant to this issue, which was made in support of his application and dated 3 May 2000, said at par 23: "I worked in Syria as a tailor. I was working illegally under the name of a Syrian citizen. I was also relying on our savings." The son's statement said, in the relevant part: "From Jordan we travelled to Syria in March 1998. When we first went to Syria we did not have any problems. Temporary residence stamps were put into our false passports." He then went on to say that after March 1999 things became difficult because of the improvement in relations between Syria and Iraq and the movement of Iraqi intelligence officers into Syria. Against that background the finding of the Tribunal is understood as a finding to the effect that he operated a tailor shop, which was his own evidence, and that he did not have problems until he left Syria. The son's description of the problems, in par 10 of his affidavit, refer simply to the risk associated with the movement of Iraqi intelligence officers into Syria. It did not refer to any action against the father by the Syrian authorities. It is notable that the Tribunal did not reject the applicant's claim that he used a Syrian person's name. It found, however, that he rented the premises from a Syrian and operated the business openly. In my opinion, so understood, the finding does not involve any inference adverse to the father by reason of the son's evidence. Rather it looks at the father's evidence which was consistent with the son's in this respect, and uses that evidence as a way of assessing the extent to which he had difficulty in living and carrying on a business in Syria. 31 In my opinion, the reference to the son's statement in this way did not involve any breach of the requirements of s 424A.

The Safe Third Country Principle 32 The second ground of review asserts that the Tribunal failed to address the necessary question whether the applicant and his family had the right to return to Syria and whether Syria would accept their return. The remaining grounds also raise in different ways challenges to the Tribunal's decision that the applicant would be able to return to and enjoy effective protection in Syria. Before considering the Tribunal's approach and these grounds, it is desirable to review the statutory framework within which the question of third safe country protection arises. 33 The existence of protection obligations under the Refugee Convention is one of the conditions whose fulfilment requires the Minister to grant a protection visa. The grant of protection visas falls within the general statutory framework for the grant of visas for non-citizens. They are dealt with in Division 3 of Part 2 of the Migration Act. The Minister has general power, subject to the Act, to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia (s 29). There are prescribed classes of visas under the regulations as well as classes provided for specifically in the Act (s 31). Criteria for visas of specified classes may be prescribed in the regulations (s 31(3)). Where an application is made for a visa it is to be considered by the Minister (s 47) and if satisfied that the criteria for the grant of a visa prescribed by the Act or regulations have been met and that other conditions, which are not relevant for present purposes, have been met is to grant the visa. If not so satisfied, the Minister is to refuse the grant (s 65). Section 36 of the Act provides for the grant of protection visas as follows: "36(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. (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. (4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion; subsection (3) does not apply in relation to the first-mentioned country. (6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. (7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act." Subsections (3), (4) and (5) were introduced by the Border Protection Legislation Amendment Act 1999 and came into effect on 16 December 1999. 34 Protection visas, falling as they do within a class provided for by s 36, are not to be found in the prescribed classes of visa set out in Schedule 1 to the Migration Regulations and the former protection (Class AZ) visa referred to in Item 1126 was deleted in 1999 (SR 243 of 1999). Schedule 2, pursuant to reg 2.03 of the Migration Regulations sets out the criteria for the grant of various classes of visa including those prescribed in Schedule 1 and those for which the Act provides directly. Item 785 of Schedule 2 to the Regulations deals with temporary protection visas and includes a requirement in Item 785.221 that: "The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention." 35 The Refugees Convention is defined in Item 785.111 of Schedule 2 as "the 1951 Convention relating to the status of refugees as amended by the 1967 Protocol relating to the Status of Refugees". Similar provisions are found in Item 866 relating to protection visas. 36 A refugee is defined in Article 1A(2) of the Convention as any person who: "…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." This is qualified by Article 1E which provides: "This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country." 37 Article 33 provides: "1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." 38 The Refugees Convention does not confer a right of asylum - Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543; Rajendran v Minister for Immigration and Multicultural Affairs (1998) 166 ALR 619; SZ v Minister for Immigration and Multicultural Affairs (2000) 173 ALR 353 at 356. The relevant municipal law of Australia gives effect to protection obligations assumed by Australia as a contracting party to the Refugee Convention. The primary obligation arises out of the prohibition against refoulement in Article 33 which has two important elements: 1. It operates in respect of refugees. 2. It prohibits only their expulsion or return to the frontiers of territories where their lives or freedoms would be threatened for a Convention reason. 39 The question whether the return of a person seeking a protection visa in Australia to a country other than that person's country of origin is consistent with Australia's obligations under Article 33 will arise in a variety of circumstances. A person who has acquired the rights and obligations of a national of the third country and has the right to reside there is not covered by the Convention because of Article 1E. Article 1E apart, Article 33 would not extend to such a person because return to the third country would not involve a threat to his or her life or freedom for a Convention reason - Thiyagarajah at 555 (von Doussa J). A right of residence in a third country is not a condition of its characterisation as a safe third country if it be a party to the Convention which will honour its obligations thereunder. Nor is it necessary that the third country be a party to the Convention if it will otherwise afford effective protection to the person. In Al-Zafiry v Minister for Immigration & Multicultural Affairs [1999] FCA 443, Emmett J observed that: "…so long as, as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and to live in a third country where he will not be under any risk of being refouled to his original country, that will suffice." At [26] This was approved in Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 at 558-559. In Patto v Minister for Immigration & Multicultural Affairs [2000] FCA 1554, I observed that the following broad propositions may be drawn from these cases in relation to the protection obligations assumed by Australia under Article 33 in its application to persons who travel to Australia from the country in which they fear persecution via a third country in which they have stayed for a time: 1. Return of the person to the third country will not contravene Article 33 where the person has a right of residence in that country and is not subject to Convention harms therein. 2. Return of the person to the third country will not contravene Article 33 whether or not the person has a right of residence in that country if that country is a party to the Convention and can be expected to honour its obligations thereunder. 3. Return of the person to the third country will not contravene Article 33 notwithstanding that the person has no right of residence in that country and that the country is not a party to the Convention, provided that it can be expected, nevertheless, to afford the person claiming asylum effective protection against threats to his life or freedom for a Convention reason. 40 The effect of s 36(3) as qualified by ss 36(4) and (5) is to identify a subset of the circumstances in which the return of a refugee to a third country will not involve a breach of Australia's obligations under Article 33. Carr J in Applicant C v Minister for Immigration & Multicultural Affairs [2001] FCA 229 read s 36(3) as confined to those circumstances in which the refugee had a legal right to enter the third country. That was a case in which the applicant, an Iraqi national, was on the evidence able to enter Syria if he were able to obtain sponsorship from within Syria. Then he would be permitted to enter Syria and remain there so long as he complied with Syrian laws. The effect of Carr J's decision was summarised by Finn J in S115/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 540 thus: "(i) where a non-citizen in Australia has a legally enforceable right to enter and reside in a third country, that person will not be owed protection obligations in Australia if he or she has not availed himself of that right unless the conditions prescribed in either s 36(4) or (5) are satisfied, in which case the s 36(3) preclusion will not apply; (ii) where a non-citizen in Australia does not have a legally enforceable right to enter and reside in a third country, Australia will nonetheless be entitled to refoule that person to that country consistent with Australia's obligations under Article 33 of the Convention, if that person is likely to be given effective protection in that country; and (Niii) if neither s 36(3) or the wider effective protection principle applies to a person, that person is owed protection obligations if he or she is otherwise a "refugee" within Article 1A of the Convention to whom the provisions of the Convention apply or continue to apply: see Article 1C to F; see also s 91ff of the Act." As Finn J put it himself: "…the denial of a protection visa because of a non-citizen's "connection" with a third country can result from either of two causes - (i) that s 36(3) applies to that person; or (ii) that the person nonetheless has effective protection in that third country." His Honour drew attention to the importance of the decision-maker properly identifying which of the bases is relied upon as they embody differing tests. Both judgments were considered by Mansfield J in Bitani v Minister for Immigration & Multicultural Affairs [2001] FCA 631 who agreed with the propositions set out in Finn J's decision and thereby with the approach taken by Carr J in Applicant C. His Honour made the important point discussed in Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630, which was handed down on the same day as Bitani, that the introduction of s 36(3) - (5) did not alter or diminish the effect of s 36(2) of the Act. His Honour put it thus: "Section 36(2) has the effect that, if an applicant for a protection visa has, as a matter of practical reality and fact, the capacity to enter or re-enter an intermediate third country and to secure effective protection there without any real risk of being refouled to the country of nationality, then Australia does not owe protection obligations to that person." At [25]. I respectfully agree with his Honour's analysis. 41 In summary, the case for which s 36(3) provides is a subset of the larger class of cases in which effective protection is available to a non-citizen from a third country and by reason of which return to the third country would not constitute a breach of Australia's non-refoulement obligation under Article 33.

Syria - A Safe Third Country? 42 The Tribunal, at the beginning of its reasons, made reference to s 36 of the Act and set out s 36(3). It referred also to the Refugee Convention, but not to Article 33. Having determined that the applicant was "a refugee from Iraq" the Tribunal posed the question it then had to determine thus: "What remains to be considered is whether or not he has had effective protection from that harm by being able to remain in a third country without risk of refoulement and, if so whether or not he could return." The real question, however, was whether or not the applicant could be returned to Syria and, if so, whether he would receive effective protection in that country. That is to say, could Australia return the applicant to Syria without breaching its non-refoulement obligations under Article 33. The question whether or not he had effective protection there was historical but logically relevant to the question whether such protection would be available in the future. The Tribunal focussed upon the applicant's history of sponsored entry, legal exit and a sponsored return coupled with his ongoing family connection with Syria. The latter was based upon a finding that his daughter, sister and nephew are still in Syria and the rejection of his contention that he had lost contact with his sister and daughter. The Tribunal was satisfied that the applicant and his family could return to Syria. This would, on the Tribunal's findings, require an assumption of the continuing availability of sponsorship, as a mode of entry, and that the applicant could seek and obtain such sponsorship. The Tribunal was satisfied that he was "…in a position to arrange a sponsorship or clearance to enable him to return". 43 Notwithstanding the Tribunal's explicit reference to s 36(3) in the earlier part of its reasons and the absence of reference to Article 33, I do not think that it follows that it assumed that the applicant had any legal right to re-enter Syria. It was, however, open on the basis of the findings about the history of entry to, exit from and return to Syria, and the continuing family connection there, to infer that sponsorship would be available to the applicant to enable his return. In that sense it was open to the Tribunal to form the view it did that he "could" return. The case differs from Patto where the applicant had been an illegal immigrant in Greece and although his presence there was apparently tolerated for an extended period there was no basis for the inference that he would be allowed to return having once left the country. In Applicant C, the question was confined to the issue under s 36(3) namely whether the applicant, in that case an Iraqi citizen, had a legal right to re-enter Syria from which he had come. What the Tribunal found was open to it to find. It posed the right question and ground (b) therefore fails. 44 In a sense the question whether the applicant "could" enter Syria is academic. It will be proven only if he successfully arranges sponsorship. If sponsorship turns out not to be available then any step by Australia to send him back to Iraq, having regard to the findings of the Tribunal that he is a refugee from that country, would be in clear breach of its non-refoulement obligation under Article 33. On the other hand, if there are steps that the applicant can take to secure his return to a safe third country, it seems a singularly unattractive proposition that he should be able to secure his place in Australia by refusing to take such steps. 45 In my opinion the position is analogous to that in which an applicant for a protection visa is found to be able, as a matter of practical reality, to re-enter a safe third country from which he came, albeit he may first have to apply for a visa. Provided Australia is prepared to return him to that country if a visa be granted, then it has discharged its obligations. If the applicant refuses to apply for a visa to enter the third country he has put himself in a position in which return to the country from which he is seeking refuge may be the only option available. In that event, a failure to co-operate in obtaining the necessary travel documents to the safe third country could properly be viewed as a constructive waiver of his claim to protection under the Convention. This is not to suggest that such a situation has or would occur in this case. 46 Of course, if the applicant does seek sponsorship and sponsorship is not forthcoming, or re-entry is refused in any event, there will have been no such waiver and Australia's non-refoulement obligation will continue in full force. On that basis he would be entitled to a protection visa. 47 It is submitted under ground (c) of the grounds for review, that the Tribunal should have been satisfied to a high degree of probability that Syria would accept the return of the applicant and his family and that inquiries should have been made for that purpose. The Act, however, does not prescribe nor does the law require, any particular standard of proof or disproof in what is an administrative and not judicial process, albeit it is a process which may be of life and death significance to those seeking protection visas. On the Tribunal's current finding, Australia has no protection obligations towards the applicant and his family which would be breached by their return to Syria. In my opinion therefore ground (c) fails. In a real sense of course, the question will not finally be resolved until it is determined whether Syria will accept the applicant's return. If sponsorship is not forthcoming and/or Syria does not accept his return, the protection obligation will be enlivened. Whether that obligation is met by a grant of a temporary protection visa or otherwise, is a matter which it is not necessary to address here. 48 It is to be noted in this regard that s 48A prohibits a further application for a protection visa being made by a person who has been refused such a visa. This is subject, however, to a ministerial direction under s 48B that s 48A does not apply to prevent a fresh application. 49 Ground (d) relates to the availability of effective protection in Syria and in substance seeks merits review of the Tribunal's findings of fact about the preparedness of Syria to enable the applicant and his family to remain there. No error of law is made out on ground (d). 50 Ground (e), the no evidence ground, is covered by the conclusions I have already reached that the Tribunal's findings were open on the evidence. The fact that there was contrary evidence not specifically adverted to does not enliven that ground in these circumstances. 51 For the preceding reasons the application will be dismissed with costs. I certify that the preceding fifty one (51) numbered paragraphs are a true copy of the Reasons for Judgement herein of the Honourable Justice French. Associate: Dated: 5 July 2001

Solicitor for the Respondent: Australian Government Solicitor