WACH v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT MOORE & TAMBERLIN JJ: 2 This is an appeal against a judgment of French J of 9 November 2001 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). On 28 May 2001, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth)("the Act"). 3 The appellant, who is a stateless Palestinian born in Syria, arrived in Australia on 28 October 2000, and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 16 November 2000. When he left Syria, the appellant travelled using a false Palestinian travel document, which he said he obtained by bribing officials. He said that his citizenship is Palestinian in Syria, and he is registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East ("UNRWA"). 4 In considering the appellant's application, the Tribunal referred to Article 1(D) of 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"). The Tribunal took the view that Article 1(D) does not apply to exclude from the Convention an applicant who is registered with UNRWA but is outside UNRWA's geographical area of operation. The appellant's claims were assessed by the Tribunal in accordance with Article 1(A)(2) of the Convention, which defines a refugee 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, is unable or, owing to such fear, unwilling to return to it." 5 The decision of the Tribunal turned primarily on the credibility of the appellant. The Tribunal found that there were too many inconsistencies in the appellant's evidence. As an example, the Tribunal noted that the appellant had provided three different and sometimes conflicting versions of his problems with the Syrian security forces, with new claims being made at the hearing. The Tribunal also noted the inconsistencies in respect of the appellant's claim relating to his alleged membership of Fatah (a PLO faction), and questioned the plausibility of some of his claims in relation to the arrest of group members. The Tribunal found that the appellant was not a member of any secret Fatah group, that members of the group had not been arrested as claimed, and that the appellant had not been harassed by Syrian security forces in the manner alleged. 6 Although the Tribunal also found that the appellant would be subject to a criminal penalty upon his return to Syria as a result of leaving the country illegally, it noted that there was no basis to believe that this penalty would be imposed in a discriminatory way for a Convention related reason. The Tribunal concluded the appellant was not a person to whom Australia owed protection obligations. 7 In the hearing before the primary judge, the main issue raised by the appellant's counsel was that the Tribunal had failed to consider whether, as a result of his illegal departure and false travel documentation, the appellant would face discriminatory penalties as a result of his Palestinian origins. In his judgment, French J addressed this submission by citing a passage from the Tribunal's reasons, and concluding: "The finding is explicit that [the appellant] would face a criminal penalty arising from the non-discriminatory enforcement of a law of general application. This must be read in the context of the wider observations of the Tribunal concerning the attitude of Syria towards Palestinians and, in particular, the relationship between Yasser Arafat and the Syrian government. Whether or not the conclusion is warranted by the evidence is not a matter into which this Court can inquire. However, in my opinion, the Tribunal has sufficiently addressed the issue raised by counsel for the appellant on this review. It cannot be said that it has failed to consider whether or not there was a risk of persecution by reason of the appellant's Palestinian ethnicity." His Honour dismissed the application on this basis, and indicated that it was unnecessary for him to consider whether the Tribunal erred in its approach to the construction of Article 1(D) of the Convention. 8 In the appeal the appellant was given leave to raise a new ground of appeal to the effect that the Tribunal erred in law by accepting that the appellant was a stateless Palestinian registered with UNRWA and was not presently receiving protection or assistance from UNRWA, but failing to find that he was a person to whom Australia owed protection obligations by virtue of Article 1(D) of the Convention. Counsel for the appellant conceded, in written submissions, that the appeal can only succeed if the Court is persuaded that the reference in Article 1(D) to persons "ipso facto entitled to the benefits of the Convention" creates protection obligations on the part of Australia to the appellant even if there is no finding that he was a refugee in the sense that he has a well founded fear of persecution of the type comprehended by the Convention. 9 For the reasons given by Tamberlin J in Minister for Immigration and Multicultural Affairs v WABQ [2002] FCFCA 329, we do not consider that the reference to "ipso facto entitled to the benefits of the Convention" means that protection obligations must automaticallyarise in relation to a Palestinian asylum seeker in circumstances where the asylum seeker is not, on the material before the Tribunal, a refugee. No error has been shown in the decision of the Tribunal or the primary Judge. 10 Accordingly, the appeal should be dismissed with costs.