FEDERAL COURT OF AUSTRALIA

Aluboodi v Minister for Immigration & Multicultural Affairs [2000] FCA 1498

Migration Act 1958 (Cth), s 476

Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543, followed

Minister for Immigration & Multicultural Affairs v Thiyagarajah [2000] HCA 9, referred to

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, referred to

Szelagowicz v Stocker (1994) 35 ALD 16, cited

Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 43, cited

Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854, cited

Al-Amidi v Minister for Immigration & Multicultural Affairs [2000] FCA 1081, distinguished

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, followed

JAMAL ABDULALI ALUBOODI v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 71 of 2000

R D NICHOLSON J

26 OCTOBER 2000

PERTH (heard in Sydney)

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for review brought in reliance upon s 476 of the Migration Act 1958 (Cth) (“the Act”).  The application seeks a review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 April 2000 whereby the Tribunal affirmed the decision of a delegate of the respondent not to grant to the applicant a protection visa.

2                     The applicant, who is a citizen of Iraq, arrived in Australia on 13 June 1999.  On 4 November 1999 he lodged an application for a protection (class XA) visa under the Act.  The delegate refused the application on 6 January 2000.

The relevant legislative provisions

3                     Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”  The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967.  The expression “Convention” will be used to mean the Convention as amended by the Protocol.

4                     Article 1a(2) of the Convention defines a “refugee” to be 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”.

Tribunal’s findings

5                     The Tribunal made the following findings:

1.                  The applicant is an Iraqi citizen and a Shi’a Arab, aged 42 and married.

2.                  The applicant fears he will be persecuted for reason of imputed political opinion and for his Shi’a religion if he were to return to Iraq.  The Tribunal regarded these claims as converging because the problem for Shi’as in Iraq is that they are perceived as being potentially opposed to the government.

3.                  Given evidence that the applicant stayed in Syria where his wife, children and extended family continue to reside, the Tribunal considered the issue whether the return of the applicant to Syria would expose Australia to a breach of Article 33 of the Refugees Convention as amended by the Refugees Protocol.  Relevantly, that Article reads:

“1.       No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

The Tribunal considered that the relevant considerations in the application of that Article were:

“Whether the applicant has the right to reside in, enter and re-enter the third country (Syria); whether there is a risk that the third country would return the applicant to his or her country of nationality (Iraq); whether the applicant had a well-founded fear of persecution in the third country itself (Syria).”

4.                  Iraqis may enter and re-enter Syria if sponsored by a relative, friend or an Iraqi opposition party operating in Syria.  The Tribunal did not accept that the applicant’s wife and other members of his family in Syria would be unable to sponsor him because they were there illegally.  It said the country information indicated Arabs are able to stay in Syria for years at a time and Iraqis who are in Syria illegally are detained until they obtain clearance.  The Tribunal therefore found the applicant has a number of people who could sponsor him to re-enter Syria.

5.                  Iraqis are able to remain in Syria indefinitely and some stay for as many as 20 or 30 years without travel documents.  It rejected the claims that Iraqis can only stay in Syria legally for a short period of time, finding that contradicted by the country information.  Despite any short-term visa the applicant and his family may have been granted on arrival in Syria, he was and they are in Syria legally.

6.                  The applicant’s family may have some difficulties in Syria.  However, the applicant may reside in Syria, as does his family.  He does not have a well-founded fear of persecution in that country.

7.                  Syria only repatriates refugees where there have been certain breaches of law and order.  Not everyone who breaches law and order in Syria is deported; imprisonment in Syria being more likely.

8.                  There are a number of safety mechanisms to ensure that persons deported from Syria are not refouled to Iraq where they would be at risk of falling into the hands of the Iraqi authorities.  Iraqis considered by the Syrian authorities a threat to state security are deported to northern Iraq which is under Kurdish control or to a country of their choice.

9.                  The applicant could re-enter Syria where he can remain indefinitely; there is nothing to suggest he would be persecuted; and the risk of deportation to Iraq, such that he would be in the hands of the Iraqi authorities, was highly unlikely to the point of being remote.

10.              The applicant therefore has effective protection in Syria.

11.              Therefore, Australia does not owe protection obligations to the applicant.

12.              Accordingly, it was unnecessary to undertake an assessment of substantive merits of the applicant’s claim for refugee status.

6                     Based on these findings and reasoning the Tribunal affirmed the decision of the delegate not to grant a protection visa to the applicant.

Grounds of review

7                     The amended application for review relies, firstly, on a ground based on breach of s 476(1)(e) of the Act.  It alleges error of law in the Tribunal’s decision involving an incorrect interpretation of the applicable law and an incorrect application of law to the facts.

8                     A second ground relies on s 476(1)(g) alleging no basis of evidence or material to support the decision.

9                     As the case was pressed in oral argument, these grounds were relied upon with reference to two grounds contained in an addendum to the amended application. 

Incorrect application of the law involving failure to consider Article 33 of the Convention

10                  The first of the grounds in the addendum is that the Tribunal was in error of law in deciding that the “applicant can re-enter Syria where he can remain indefinitely”.  The error is said to arise from its failure to consider whether its decision breached Article 33 of the Convention.

11                  I cannot accept that the Tribunal failed to consider Article 33 or that it incorrectly interpreted the law contained in that Article.  In the course of its reasons the Tribunal addressed the Article and authorities relating to it.  It said:

“Broadly speaking, Australia does not have protection obligations to a person who has been accorded effective protection in a third country: Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 151 ALR 685.  Effective protection in this context is protection which will effectively ensure there is not a breach of Article 33 of the Convention which prohibits the return of a refugee to the frontiers of territories where his or her life or freedom would be threatened for one of the five Convention reasons.  For protection to be “effective” it must be genuine protection:  Al Anezi v Minister for Immigration & Multicultural Affairs [1999] FCA 355 at [15] (Lehane J, 1 April 1999).  If the return of an applicant to a third country would not expose Australia to a breach of Article 33 then Australia does not owe protection obligations to the applicant:  Karthigesu Rajendran v Minister for Immigration & Multicultural Affairs (unreported, Federal Court, Mansfield J, 4 May 1998) at 14.  In determining whether an applicant has effective protection in a third country relevant considerations will usually be whether the applicant has the right to reside in, enter or re-enter the third country; whether there is a risk that the third country will return the applicant to his or her country of nationality; and whether the applicant has a well-founded fear of persecution in the third country itself.”

12                  Furthermore, in setting out its findings and reasons the Tribunal stated:

“However, before considering the applicant’s claims against Iraq, the Tribunal decided to consider whether Australia has protection obligations in relation to the applicant given his stay in Syria, where his wife, children and extended family continue to reside.  The issue centres on whether the return of the applicant to Syria would expose Australia to a breach of Article 33 of the Convention.  In determining this issue, the relevant considerations are whether the applicant has the right to reside in, enter and re-enter the third country; whether there is a risk that the third country will return the applicant to his or her country of nationality; and whether the applicant has a well-founded fear of persecution in the third country itself.”

13                  Nor was there any failure by the Tribunal to correctly apply Article 33.  The list of the findings of the Tribunal previously set out shows that it directed its attention to finding of facts relevant to the application of the applicable law.  Examination of those findings shows the Tribunal did not fail to apply the law correctly by not going into possible aspects of the return of the applicant to Syria.  The issues of the applicant’s entitlement to enter Syria and reside there were each considered by the Tribunal.  The submissions for the applicant in reality seek to reargue the merits of the Tribunal’s conclusion on the ground that there was a real chance of the applicant being imprisoned or suffering other punishment.

14                  Furthermore, it cannot be said (as was argued for the applicant) that the decision in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 (so far as it is unaffected by the decision in the High Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah [2000] HCA 9) can be distinguished on the ground that the facts there related to residence and a grant of refugee status in the third country.  The principles to which Article 33 gives rise as applied there to those facts can nevertheless, in the absence of matching facts, apply to the findings of fact made by the Tribunal in the applicant’s circumstances.

15                  In my opinion the manner in which the Tribunal interpreted and applied Article 33 of the Convention does not disclose any error of law.

Whether no evidence for decisions in relation to Iraq and Syria

16                  The second ground raised in the addendum is that by affirming the decision made by the delegate that the applicant can go back to Iraq and also in deciding that the applicant can re-enter Syria, the Tribunal’s decision was not supported by any evidence or material.  It is said the Tribunal failed to consider the United Nations Procedure and Criteria which stipulates that the “examiner must assess the validity of any evidence and the credibility of the applicant’s statements” before the decision making.

17                  The relevant portion of this decision in the light of the decision of the Tribunal is the claim that there was no evidence to justify the Tribunal’s conclusion that the applicant could re-enter Syria.

18                  It is apparent from the findings of the Tribunal previously set out that it is not the case there was no evidence or material to support its finding.

19                  Even if there were no evidence for this conclusion that would not make out the ground in the absence of proof by admissible evidence that the applicant cannot re-enter Syria.  This is because s 476(1)(g) must be applied in accordance with s 476(4)(b).  That provides that the no evidence ground cannot be made out unless (relevantly) the person who made the decision based the decision on the existence of a particular fact and that fact did not exist:  cf Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (FC) at 220-221; Szelagowicz v Stocker (1994) 35 ALD 16 (FCA/FC) at 22; Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 43 (FC) at [41]; Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854 (FC) at [52-58] and cases there cited.  The no evidence ground does not allow an applicant to reargue the merits of the findings on the evidence before the Tribunal, so that arguments to that end cannot avail the applicant.

Conclusion

20                  In submissions for the applicant reference was made to the decision in Al-Amidi v Minister for Immigration & Multicultural Affairs [2000] FCA 1081.  That was a decision dealing with the issue of relocation.  That is a different issue to the question of effective protection raised in the applicant’s case.

21                  An allegation that the Tribunal’s decision breached s 420 of the Act was not pursued, counsel for the applicant accepting the effect of the decision in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.  Nevertheless the effect of many of the submissions for the applicant was to argue in terms of the merits of the Tribunal’s decision.

22                  A particular feature of the applicant’s case is that three of the applicant’s brothers reside in Australia, having been granted humanitarian visas in 1995 while living in Saudi Arabia.  However, the applicant not having identified any error of law in the reasoning of the Tribunal, cannot succeed in his intention to attain refugee status for himself in Australia.

23                  For these reasons the application for review will be dismissed.

Associate:

Dated:              26 October 2000