FEDERAL COURT OF AUSTRALIA

S115/00A v The Minister for Immigration and Multicultural Affairs [2001] FCA 540

MIGRATION - refugees - application for protection visa - refoulement to third country - scope of s 36(3) of the Migration Act - effective protection notwithstanding no legally enforceable right to enter and reside.

PRACTICE AND PROCEDURE - whether futile to remit for reconsideration.

Migration Act 1958 (Cth) ss 36(3), 476(1)(e) and (g)

Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 followed

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 referred to

Minister for Immigration and Multicultural Affairs v Al-Sallal [1999] FCA 1332 referred to

Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 referred to

Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554 referred to

Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 referred to

Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 referred to

Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 referred to

Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 referred to

Santa Sabina College v Minister for Education (1985) 58 ALR 527 referred to

Minister for Immigration and Multicultural Affairs v Jia [2000] HCA 17 referred to

S115/00A v The Minister for Immigration and Multicultural Affairs

S115 of 2000

FINN J

10 MAY 2001

CANBERRA (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

                 1.     The application be allowed.

                 2.     The decision of the Refugee Review Tribunal dated 14 September 2000 be set aside.

                 3.     The matter be remitted to a differently constituted Tribunal for reconsideration according to law.

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 an order of review under Part 8 of the Migration Act 1958 (Cth) ("the Act") of a decision of the Refugee Review Tribunal ("Tribunal") dated 14 September 2000.  The Tribunal's decision was that it was not satisfied that the applicant, an Iraqi national, was a refugee, and affirmed the decision not to grant a protection visa.  This decision was not based upon any direct consideration of whether the applicant had a well-founded fear of persecution in Iraq but, seemingly, was founded on the Tribunal being satisfied that he had a right to return to a third country (ie Syria) where he enjoys effective protection and in which he did not face either persecution for any Convention reason (ie the 1951 Convention relating to the Status of Refugees as Amended by the 1967 Protocol relating to the Status of Refugees) or any real chance of refoulement from Syria to Iraq. 

2                     The issues raised by the applicant in impugning the decision are various and will be noted later in these reasons.  I would indicate, though, that the decision raises an issue of some possible general significance as to the operation of s 36(2) of the Act in light of recent decision of Carr J in Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 on s 36(3) of the Act.  I should also mention that on 31 January 2001 an order was made that the name of the applicant as applicant in this proceeding or anything liable to identify him as the applicant not be published.

The Statutory Setting

3                     Section 36 of the Act provides:

"(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.

Protection obligations

(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."

4                     Subject to a qualification noted below, the content of the question posed by s 36(2) - is a non-citizen in Australia a person to whom Australia owes protection obligations - is to be gauged by reference to the protection obligations owed by Australia under the Convention as a matter of international law:  Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 at 552.  The qualification to this, wrought by the 1999 amendment to the Act, is that which results from s 36(3), (4) and (5).  If s 36(3) applies to a person, Australia is deemed not to have protection obligations to that person irrespective of the terms of the Convention.

5                     Article 1A(2) of the Convention defines a "refugee" in the now familiar terms of being (inter alia) a 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.  Notwithstanding that a person satisfies that definition, the Convention nonetheless will not, or will cease to, apply to that person if the disqualifying conditions specified in Art 1C to Act 1F are satisfied.  None of these are of present relevance.

6                     The protection obligations owed a person who satisfies the definition but who is not caught by the disqualifying conditions, are set out in Articles 31-33 of the Convention, the principal of which is contained in Art 33.  It provides:

"Prohibition of expulsion or return ("refoulement")

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.

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."

That article, as indicated by von Doussa J in Thiyagarajah (at 558), imposes obligations falling short of creating a right in a refugee to seek asylum, or a duty on the part of Australia (as a Contracting State) to grant it.  Where an applicant for a protection visa in Australia is "as a matter of practical reality and fact", likely to be given "effective protection" in a third country by being permitted to enter and live in that country where he or she will not be at risk of being returned to his or her original country, Australia can (consistent with Article 33) return the applicant to that third country without considering whether he or she is a refugee:  see Minister for Immigration and Multicultural Affairs v Al-Sallal [1999] FCA 1332.  Importantly, in order to find that a third country affords effective protection such as described above, it is not necessary to show that (i) the applicant has already been granted refugee status in that country:  Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1;  (ii) the third country is a party to the Convention;  Al-Sallal's case, above;  or (iii) the applicant has a right of resident in that country:  Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554.

The "Applicant C" Issue

7                     In Applicant C's case, above, Carr J held that in determining whether s 36(3) of the Act precluded a finding that Australia has protection obligations, it must be shown that the "right to enter and reside in … any country apart from Australia" was a legally enforceable right.  It is in consequence insufficient for s 36(3) purposes to show that, though not possessing such a right, an applicant as a matter of practical reality and fact is likely to be given effective protection in another country.

8                     The effect of Carr J's decision is, in my view, that:

(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

(iii)       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 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.

9                     A consequence of these varying contingencies is that 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.  As the decision of Carr J illustrates it is important for the decision-maker properly to identify which of these bases is the one being relied upon as they embody differing tests.  In Applicant C the Tribunal purported to apply s  36(3) without any evidence that the applicant in that case (an Iraqi as here) had a legally enforceable right to enter Syria (as here).  The Tribunal did not purport to apply the "effective protection" provision.

10                  I should add that I was not asked to depart from Carr J's decision in this proceeding.  As I do not consider it is clearly wrong, I would, as a matter of comity, refrain from doing so in any event.

The Factual Setting

11                  The applicant's claims are shortly stated in the Tribunal's reasons.  They can be paraphrased as follows.  The applicant is aged 43 years and married.  He was born and educated in Iraq where he later worked mainly as a calligrapher.  He is of the Shia faith.

12                  The applicant arrived in Australia illegally in November 1999.  He said that he last left Iraq in September 1996.  He claims that he did so by entering Syria illegally with the assistance of a Kurdish smuggler.  He claims that he left Syria on a false passport that he destroyed en route to Australia after having spent about a month in Indonesia.  His stated reason for destroying his passport was so that he would not be deported on arrival in Australia.  He claims that he fled Iraq as he was being sought by the authorities for connection with an opposition political group, Al Daawa, and for his role in the intifada.  He says that his father was executed in prison and a brother might have encountered the same fate.

13                  The applicant claims that he had no sponsorship into Syria because he did not know anyone there;  that he never took any steps to regularise his residence in Syria as by so doing, the authorities would discover he had arrived there illegally and would in consequence deport him to Iraq;  that he often witnessed security checks being undertaken (referring to various cases of Iraqi nationals being detained and repatriated to Iraq or other countries) and that Iraqis in Syria are often reported to the authorities for no good reason.

14                  He said he did not approach the offices of UNHCR as he feared he would be detected by the Syrian authorities or be monitored by Iraqi intelligence agents who were known to have killed some Iraqis in Syria.  He said that he felt relatively safe in the village where he resided on the outskirts of Damascus, but not in the centre of the capital.  He claims that his business and home rental accommodation were let in others' names so he would not be detected, and he only operated his business casually for about three months of the year when many Shia pilgrims came to the area.  He also claims that shortly before his departure for Australia some people whom he identified as Iraqi intelligence agents came to his shop and abused him and caused him to be fearful for his own and his family's safety.  He said that he and his wife had a religious ceremony for their marriage, but did not register their union.  He said that his wife entered Syria legally, but she faces deportation now as she has overstayed in Syria.  He alleges that the new leadership in Syria has placed stricter limits on the time Iraqis can stay in Syria and that letters received by friends report an increasing number of Iraqis are being deported from Syria.

The Tribunal's Decision

15                  Having referred to the applicant's claims the Tribunal turned to what it considered to be the "[k]ey issues for consideration".  These it indicated to be:

"whether the applicant has effective protection in Syria without risk of refoulement to Iraq and whether or not he has a well-founded fear of persecution in relation to Syria."

It went on to note the principal case law from Thiyagarajah's case to Al-Sallal's case.  It then stated that "[r]elevantly, Section 36 of the [Act] had three new provisions added to it".  It cited s 36(3), (4) and (5) and quoted from the Explanatory Memorandum to, and second reading speech on, the amending Bill.  And it concluded:

"[t]he aforementioned amendments to s 36 apply to the present applicant who lodged an application for a protection visa in March 2000."

16                  Thereafter it devoted six pages to "country information" for Syria.  The burden of much of that information was encapsulated in a Department of Foreign Affairs and Trade document of 29 March 2000 in which a senior official of the Immigration section of Syria's Ministry of the Interior:

" … confirmed that Syria was very willing to cooperate with Australia, including with returnees.  Hariry [the official] reaffirmed earlier advice … that return of Syrian nationals was straightforward.  With regard to Iraqis, he said Syria was prepared to consider readmission of Iraqis to Syria and repatriation of Iraqis via Syria on a case by case basis.  In cases, the legal entry and exit of Iraqis to/from Syria was critical.  Syria would not consider cases where Iraqis had entered or exited Syria illegally.

General Hariry indicated that readmission of Iraqis to Syria would only be considered where they were either married to Syrian nationals who still lived in Syria or had other strong connections.  These were the only Iraqis Syria would consider for long term stay and each case would be considered on its merits".  (DFAT, 192/00, 29 March 2000).

17                  The Tribunal then referred to the issue of the applicant's passport.  It did not accept that the passport was false in view of the number of times he conceded he used the passport at borders without difficulty.  It likewise did not accept that he entered Syria illegally, but rather it found he entered Syria legally with the support of a sponsor.

18                  The Tribunal found that:

"the applicant, especially through his former legal entry into Syria and the significant connections he has there due to his association with Al Daawa, and the length of his own residence and that of his wife whom he married in Syria, has a right to re-enter Syria.  Aforementioned country information indicates that he does not face a real chance of refoulement to Iraq.  He is able to reside in Syria indefinitely.  Although he claims that many Syrians make unfounded and capricious reports to the authorities concerning Iraqis that might lead to their deportation such a contention is at odds with available information and with the applicant's own capacity to remain in Syria for some three years.  Although there has been speculation about the situation of Iraqis in Syria if relations between the two countries are normalised aforementioned information indicates that the prospect of such a rapprochement in the foreseeable future is remote."

19                  It found that the applicant did not face a real risk of refoulement to Iraq from Syria and that he did not have a well-founded fear of persecution in Syria for a Convention reason. 

20                  In the final three paragraphs of its reasons, the Tribunal stated:

"The Tribunal notes in light of the amendments to section 36 of the Migration Act and the particular facts of this case that the applicant's departure from Syria to seek asylum in Australia is at odds with the spirit and clear parliamentary intention of those amendments.  Those amendments are clearly aimed at preventing forum-shopping among asylum seekers.

The Tribunal finds that "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 [viz. Syria] where he will not be under any risk of being refouled to his original country [Iraq](per MIMA v Al-Sallal, op. cit.).  It also concludes that the applicant has not demonstrated any valid reason based on a well-founded fear of persecution, or otherwise, as to why he has not taken all possible steps to avail himself of the protection that is available to him in Syria.

In considering all the circumstances of this case the Tribunal finds that the applicant has a right to return to Syria where he enjoys effective protection.  He does not face any real chance of refoulement to Iraq or of persecution for any Convention reason in Syria.  Accordingly, Australia's protection obligations are not invoked in the present case."

In the result the Tribunal determined:

"[it was] not satisfied that the applicant is a refugee and affirms the decision not to grant a protection visa."

The Applicant's Challenges

21                  The first, and in my view only substantial, challenge to the Tribunal's decision is in essence that which was successful in Applicant C's case.  It is that the Tribunal applied s 36(3) to the applicant but without any evidence that he had a legally enforceable right to enter Syria, or, in the alternative, without correctly appreciating that (inter alia) such a legally enforceable right was required before s 36(3) could be invoked against him.

22                  Related to this challenge is the proposition, as in Applicant C's case, that the Tribunal did not, and did not purport to, apply the effective protection principle to the applicant, absent a legally enforceable right capable of attracting s 36(3).

23                  The respondent's contrary contentions on this matter are twofold.  The first is that, fairly analysed, the Tribunal's reasons are consistent with its having considered the application both of s 36(3) and the effective protection principle.  The second is that even if it be found the Tribunal so intermixed s 36(3) and the effective protection principle as to have fallen into error, its findings in any event were such as to satisfy at least the effective protection principle so that it would be futile to remit the matter to the Tribunal for reconsideration.

24                  For my own part, I do not consider that one can properly conclude either that the Tribunal separately considered the application both of s 36(3) and of the effective protection principle, or that it correctly comprehended the differing scope and application of the two.  They have been seamlessly mixed with, in my view, s 36(3) ultimately being applied as in effect a crystallisation of the effective protection principle.  In light of the Tribunal's own appreciation of the potential application of s 36(3) to the applicant (as expressed early in its reasons) and to the language of the last three paragraphs of the Tribunal's reasons (set out above), I am not satisfied that the Tribunal did other than apply s 36(3) to the applicant.  It directed itself to, and answered, the questions raised by s 36(3), (4) and (5).  And it erred in its failure to appreciate that the "right" referred to in s 36(3) was a "legally enforceable right".

25                  There clearly was no evidence before the Tribunal of the applicant having such a right.  On the contrary.  For this reason, as in Applicant C's case, the applicant has made out his claim (i) under the no-evidence ground of s 476(1)(g) as elaborated upon in s 476(4)(b):  "the decision [was] based on the existence of a particular fact … that … did not exist";  and (ii) under s 476(1)(e), there being an incorrect interpretation of the applicable law.

26                  I would likewise reject the respondent's ultimate submission in the particular circumstances of this case.  It can, of course, be a proper exercise of the discretion conferred on this Court by s 481(1) of the Act, to decline to grant relief and to affirm a Tribunal decision notwithstanding an error infecting it, where it would be futile to remit the matter to the Tribunal for reconsideration:  Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238.  Illustrative of circumstances where the "futility principle" may properly be applied are (i) where notwithstanding the Tribunal's error, the decision arrived at was clearly correct on the material before it:  see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562;  or where the same result would be inevitable on the remitter:  Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214;  see also Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301.  But where it is possible for reasons of change of mind, reappraisal of the evidence, or otherwise that a different result could ensue, the Court should be slow to exercise its discretion to shut an applicant out of relief on the basis of futility:  Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540. 

27                  In the present case, I am not satisfied that that "possibility" would not be there on a remitter, despite the findings made in the decision under review.  I do not suggest that the same decision may not still be made on the reconsideration.  Rather I am indicating that this is not inevitable, though I acknowledge that the findings made, if maintained, pose a formidable obstacle to the applicant.

28                  Where a Tribunal has purported to apply one body of principle (ie s 36(3)) and has done so incorrectly, there are clear hazards in reconstructing a decision for the Tribunal based on a different, even if closely related, body of principle (ie effective protection) which it did not apply.  In such a case - and I am unprepared to say the present is not one of them - the possibility is there for a different appraisal to be made of the material before the Tribunal were it to be viewed through the correct legal prism.  The Tribunal's findings have been disputed in various ways in this proceeding.  I need not, and do not, venture upon the correctness or otherwise of the challenges so made.  I do, though, consider that the factual material to which I have been taken is not itself so decisive that a Tribunal, acting free of error, could only come to one conclusion on it.  I refer, for example, to the evidence concerning the legality or otherwise of the applicant's entry into Syria and the adverse inferences drawn from it.

29                  Whether or not it avails him in the end, the applicant should be afforded the opportunity to have his application determined on proper grounds.

The Other Challenges

30                  What I have said is sufficient to dispose of this application.  It is unnecessary in the circumstances, save in one respect, to consider those challenges and I refrain from so doing other than to say that, in the main, they challenge fact findings on a "no-evidence" basis or else on the basis of inadequacy in compliance with the requirements of s 430(1) of the Act in the manner in which the Tribunal set out its findings in its statement of reasons.

31                  The one challenge to which I should make express reference relates to the claim that the decision was induced or affected by actual bias:  see s 476(1)(f) of the Act.  This bias is said to be evidenced both in the manner and content of oral questioning of the applicant at the Tribunal hearing on 5 September 2000 - a copy of the transcript has been tendered - and, as a matter of inference, in the decision itself.

32                  In fairness to the Tribunal member I should indicate that I consider this claim to be quite unfounded.  The member tested the applicant in oral questioning and, on occasion, bluntly and doubtingly.  But the transcript is far removed from one suggesting prejudgment and a closed mind:  see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17.  Likewise the reasons for decision, while shortly dismissive of the applicant's claims and based in crucial respects on findings born of an adverse view of the applicant's credibility, provide no basis for the inference suggested by the applicant.  Given the need for reconsideration and by a differently constituted Tribunal - this being appropriate given the adverse credibility findings, I do not intend to enter upon the details of the claim made.  I merely wish to register my view that the allegation is one inappropriately made in the circumstances.

Conclusion

33                  The application will be allowed, the decision of the Tribunal will be set aside and the matter will be remitted to a differently-constituted Tribunal for reconsideration according to law.

Associate:

Dated:              8 May 2001