W321/01A v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent ("the Minister") that the applicant not be granted a "protection visa". 2 The applicant is a Palestinian who was born in Egypt in 1976 and has an Egyptian travel document. 3 The applicant said his father (who died in 1999) had worked with, and had been a member of, the Palestine Liberation Organisation ("PLO"). As a result, his father had been imprisoned by Israel for two years, and then was forced to leave Gaza for Jordan. It appears that, in Jordan, his father was registered with the United Nations Relief and Works Agency ("UNRWA") as a refugee. 4 In 1970, after the "September Massacre", the applicant said his father left for Syria. However, Syrian intelligence reportedly imposed restrictions on his father so he moved to Egypt in 1976, where the applicant was born. The applicant said that in Egypt, his father also faced many restrictions that compelled him to return to Syria with his family in 1984. 5 The applicant said that, as Palestinians, his family faced many forms of harassment in Syria. They were not allowed to own property and could not work in any government organisation. He said that his father was imprisoned for five years by the Syrian authorities after the relationship between the PLO and the Syrian Government deteriorated. 6 When the applicant graduated from college, he was not allowed to be employed in Syria. He said that in early 1999 he got the opportunity to study in Iran through the Popular Front for Palestine Liberation. On a scholarship from the Iranian Government, he studied Persian language at a university and received a diploma in Persian-Arabic translation. He then enrolled in computer engineering in another Iranian university. 7 The applicant said that during this period many riots occurred in Iranian universities and, during one of those riots, the Iranian intelligence forces raided the students' dormitories and attacked the students without discrimination. After the riots, restrictions were placed on foreign students, as the authorities apparently thought that foreigners were an important element in any disorder occurring in the country. 8 During the latter part of this period, the applicant said his father became ill and he tried to return to Syria to visit him. The applicant apparently had to wait one month to get a Syrian visa. When he re-entered Syria on 18 October 1999, he was asked to report to the Palestine branch of the Syrian Intelligence Department. When he went there, the head of the branch reportedly asked him about the political situation in Iran and, specifically, about Syrian and Palestinian students in Iran. The applicant said that he told the head of the branch that he was not interested in politics and did not have much information. He claimed he was then asked to supply information about Iranian students. The applicant said he told the intelligence officer that his father had just died and he could not return to Iran at that time. The applicant said he was then asked to provide information on his friends and neighbours in Syria. He refused. This prompted threats from the branch head, and the applicant claimed that after he persisted in his refusal, he was imprisoned for three months. His brother, who had also worked for the PLO, was also imprisoned, reportedly as a means of pressuring the applicant. The applicant said that, eventually, to get out of prison, he had no choice but to sign an agreement, indicating his willingness to co-operate with the intelligence branch. The applicant and his brother were released when they signed a declaration undertaking to report to Syrian intelligence any information involving a threat to Syrian security. 9 The applicant claimed that he feared further action against him by Syrian intelligence if he failed to provide information and became regarded by Syrian authorities as unreliable, or hostile to Syrian interests. As soon as he was released from prison, the applicant said he made plans to leave Syria, with the help of a smuggler. He said he left Syria on 22 July 2000 and flew to Indonesia, where he boarded a boat, arriving in Australia around 23 August. 10 On 8 March 2001, the applicant lodged an application for a protection visa and on 11 May a delegate of the Minister refused to grant that visa. On 15 May the applicant applied for a review of that decision. 11 Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied the grant of the visa is to be refused. 12 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "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." 13 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as the "Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and the "Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Act and is not a term used in the Convention. 14 The Convention is a treaty under which the "Contracting States" have agreed to apply the provisions of the Convention to "refugees". Sub-Article 1(A) of the Convention provides the following definition of "refugee": "For the purposes of the present Convention, the term 'refugee' shall apply to any person who:…(2)…owing to 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;…" 15 Exception to, or cessation of, the operation of the definition of refugee under the Convention is set out in, inter alia, sub-Articles 1(C), (D), (E) and (F). Sub-Article 1(D) provides that: "This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention." 16 It was not contended by the Minister that sub-Article 1(D) applied to the applicant. (See: Al-Khateeb v Minister for Immigration & Multicultural Affairs [2002] FCA 7 per Carr J.) 17 As a Contracting State, Australia has undertaken the obligations imposed on Contracting States by the Convention, save for the obligations set out in Article 32, which, by a statement of reservation, Australia declined to accept when it acceded to the Convention on 22 January 1954. 18 Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. The obligations so undertaken may come within a broad meaning of "protection obligations", but s 36(2) is to be taken to refer to the direct obligations Australia has accepted as a Contracting State not to penalize, or restrict the movement of, a refugee who has entered Australia without authority, having come directly from a territory where the life or freedom of that person was threatened for a Convention reason, and not to expel or return a refugee from Australia to the frontiers of territories where the life or freedom of the refugee would be so threatened. 19 The applicant, unrepresented on the hearing of the application and without assistance in the presentation of his case, made submissions through an interpreter. In essence, the applicant submitted that the Tribunal had not made a proper determination of the question whether he had a well-founded fear of persecution if returned to Syria. 20 First, the applicant submitted that the Tribunal assumed erroneously that he was a refugee registered with UNRWA in Syria and, as such, had a right of residence in Syria. The applicant presented to the Court a statement by the UNRWA that the applicant had been included by the UNRWA in his father's registration as a refugee in "Jordan field". The applicant submitted that as a member of a Palestinian family displaced from Gaza and holding Egyptian travel papers, he was regarded by Syria as a person who may be admitted to Syria but could not obtain the right to reside in that country granted to a refugee registered with UNRWA in Syria. Material before the Tribunal informed it that, historically, Syria had oppressed those Palestinians in Syria who were considered to be politically aligned with Yasser Arafat and the PLO. 21 The applicant contended that, as a member of a Palestinian family from Gaza, he had no rights in Syria and, in particular, was denied the right to obtain employment in Syria, irrespective of his level of education. The applicant contended that such discrimination amounted to persecution. The applicant told the Tribunal that Syria accorded differential treatment to Palestinians registered with the UNRWA according to whether the "papers" held were Egyptian, Lebanese or Jordanian. The applicant did not claim directly that his registration with the UNRWA as a refugee in Jordan was not recognised in Syria. 22 Whether the nature of the applicant's claims should have been understood as a claim that the applicant was not registered as a refugee with the UNRWA in Syria is debatable. The Tribunal did not understand that further inquiry was required in that regard and treated the applicant as a UNRWA-registered refugee recognised by Syria. The Tribunal found that UNRWA-registered refugees were not subject to adverse discrimination in Syria and determined that the applicant faced no risk of persecution by reason of being a Palestinian refugee residing in Syria. The Tribunal did not inquire, and, therefore, did not determine whether a Palestinian, not being a UNRWA-registered refugee in Syria, who entered Syria and continued to live there thereafter, would be regarded by Syrian authorities as equivalent to a refugee registered by the UNRWA in Syria. 23 On the material before the Tribunal the applicant was a UNRWA-registered refugee and there was information before the Tribunal that in Syria such persons did not face persecution within the meaning of that term in the Convention. It follows that the Tribunal did not err in deciding that the applicant had no reason to fear persecution if returned to Syria. No error on the part of the Tribunal can be demonstrated by showing that a different view of the applicant's circumstances may have been open to the Tribunal, if material now relied upon by the applicant had been presented to the Tribunal. 24 The second aspect of the applicant's case is a matter of law which arises on the face of the reasons of the Tribunal. Although this issue arose in the course of the hearing, counsel for the respondent was able to make full submissions on the point. 25 In its reasons the Tribunal stated, in effect, that it was not satisfied that the applicant had been imprisoned for three months by Syrian security forces after the applicant refused to become an informant for Syrian intelligence. If such incarceration had occurred, obviously it would have been a relevant consideration in deciding whether the applicant had a well-founded fear of persecution because of a fear of arbitrary arrest, incarceration, and interrogation under duress at the hands of security forces if returned to Syria. 26 The Tribunal stated that it was "implausible" that the Syrian security service would attempt to coerce a person to be an informant and, therefore, the claim made by the applicant, that he had been incarcerated for three months, could be disregarded. No finding was made by the Tribunal that the applicant's claims had been discredited by demonstrated falsehoods or patent inconsistencies. 27 The Tribunal reasoned that any information the applicant could provide to Syrian intelligence would be so limited that the Tribunal could conclude that it was unlikely that the applicant would have been "a target for such recruitment". The Tribunal, however, found no facts that made the claimed events implausible and the applicant was not found by the Tribunal to be dishonest. Indeed, most of the applicant's account appears to have been accepted by the Tribunal, including his own history and the statement that his brother had, at one time, worked for the PLO and that his father had been imprisoned for five years by Syrian authorities for his membership of the PLO. The Tribunal made no comment on the applicant's claim that his brother had been detained for one month at the time the applicant claimed to have been imprisoned. 28 The Tribunal had no substantive material before it as to how Syrian intelligence services assessed who may be of use as an informant nor how Syrian intelligence would act in that regard. The Tribunal said that the applicant's claim was not consistent with a 1998 report by the Research Directorate of the Canadian Immigration and Refugee Board which stated: "Oral sources consulted stated that they had never come across any evidence suggesting that the Syrian Intelligence unlawfully imprison Syrian citizens who do not want to become informants before or after travelling abroad." 29 Apart from the limited nature of the Canadian information, on its face that material was irrelevant to the applicant's circumstances. The applicant was not a Syrian citizen but a Palestinian, whose presence in Syria was at the discretion of Syrian authorities. Furthermore, as the Tribunal would have been aware, the Syrian intelligence force has a broad mandate to promote or protect the security interests of Syria as perceived by that agency. 30 The Tribunal cannot exclude an applicant's account from the material the Tribunal is obliged to consider, by relying upon a bare assertion that the applicant's account is "implausible". There must be facts found that are inconsistent with claimed events, or the claimed events must be so beyond the human experience of possibilities that they may be said to be inherently unlikely. As stated by the United States Court of Appeals in Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7th Cir. 1992) at 1131: "A bare conclusion is not an adequate discharge of an administrative agency's responsibilities unless the ground or argument that it is rejecting is frivolous." 31 At their highest, the reasons of the Tribunal recorded that the Tribunal was not persuaded by the applicant that imprisonment at the behest of Syrian security forces occurred, as claimed by him. The reasons did not state that the Tribunal had made a positive finding, based on probative material or logical grounds, that such events had not occurred. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [147].) The Tribunal speculated that Syrian intelligence personnel would not have acted as claimed and purported to rely upon that speculation to put that part of the applicant's case to one side. 32 The decision the Tribunal had to make was whether the applicant had a well‑founded fear of persecution. In the performance of that task, the Tribunal could not exclude relevant matters from its consideration. In determining whether the applicant's fear, namely, that he would suffer persecution in future if returned to Syria, was well-founded, the Tribunal had to put all relevant matters into the balance and ask itself if there was a real risk that such persecution may occur. Notwithstanding that the Tribunal may not have been persuaded that past facts relied upon by the applicant had occurred as claimed, any assessment of the degree of risk of persecution facing the applicant in future had to take those claimed events into account. 33 As Gleeson CJ and McHugh J stated in Abebe v Commonwealth (1999) 197 CLR 510 at [83], the fact that an applicant: "…might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail. As [Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559 at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal 'must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution' [Guo at 576]." 34 As Brooke LJ, with whom Robert Walker LJ concurred, said in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469‑470: "For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk] of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur." 35 The Tribunal was bound to consider the events claimed by the applicant in assessing whether there was a real chance that future events feared by the applicant may occur. (See: Abebe per Gleeson CJ and McHugh J at [85]; Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 576). 36 Therefore, notwithstanding that the Tribunal was not satisfied affirmatively that the applicant had been imprisoned arbitrarily by Syrian security forces for three months for refusing to become an informant, the Tribunal had to take into account the possibility that such an event had occurred and assess whether it was possible that it was an act carried out by Syrian authorities by reason of political opinion imputed to the applicant. Having made that assessment, the Tribunal should have determined whether the applicant had a well-founded fear of persecution by assessing whether there was a real chance that, at any time in the future if the applicant were returned to Syria, the applicant would be dealt with by Syrian intelligence forces as feared by the applicant, namely, by arbitrary detention and deprivation of liberty, interrogation and extrajudicial treatment. 37 It follows from the foregoing that either the Tribunal misinterpreted the relevant law in respect of the meaning of "well-founded fear of persecution" or applied the law incorrectly to facts found, thereby providing ground for review under s 476(1)(e) of the Act. Further, it may be said that the Tribunal failed to take into account a relevant consideration, or failed to ask and determine the correct question, in purporting to make the decision that it was not satisfied that the applicant had a well-founded fear of persecution. In those circumstances ground for review also arose under s 476(1)(b) or (c) of the Act. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gleeson J at [10]; McHugh, Gummow and Hayne JJ at [76] - [83].) 38 The decision of the Tribunal must be set aside and the matter returned to the Tribunal for reconsideration. I certify that the preceding thirty‑eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.