FEDERAL COURT OF AUSTRALIA

V1043/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 910

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

Al Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 1472 applied

Minister for Immigration and Multicultural Affairs v Al‑Sallal (1999) 94 FCR 549 applied

Al‑Rahal v Minister for Immigration and Multicultural Affairs [2000] FCA 1005 applied

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

Tharmalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 1180 considered

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

Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 considered

V1043/00A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 1043 OF 2000

SUNDBERG J

18 JULY 2001

MELBOURNE

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

BACKGROUND

1                     The applicant is a citizen of Iraq. He left Iraq and entered Syria in September 1996.  He lived there with his wife and children for about three years. He then travelled to Australia via Indonesia, arriving as an illegal boat entrant on 29 November 1999. His wife and children remained in Syria. The applicant lodged an application for a protection visa on 29 February 2000 which was refused by the respondent’s delegate.  The Refugee Review Tribunal (“the Tribunal”) affirmed the delegate’s decision. The applicant applied to the Court for review of the Tribunal’s decision pursuant to Part 8 of the Migration Act 1958 (“the Act”).

TRIBUNAL’S REASONS

2                     Whilst the Tribunal did not accept the applicant’s account of past experiences at the hands of Iraqi authorities, it nevertheless found there was a real chance he would be subjected to persecution in the foreseeable future in Iraq for reasons of imputed political opinion by reason of the manner of his departure from Iraq.  The Tribunal then said:

“However, Australia does not have protection obligations to a person who has effective protection in a third country. As the Applicant spent some time in Syria and a much briefer period in Indonesia before arriving in Australia, the Tribunal has considered below the matter as to whether he has prior protection in either or both those countries.”

3                     The Tribunal rejected the applicant’s claim to have entered Syria illegally.  It found the Syrian authorities knew of his entry into Syria, and that it was subject to their control. Accordingly, his entry into Syria was found to be legal.  The Tribunal went on to consider the availability of effective Syrian protection for the applicant:

“In signing the Refugees Convention and its Protocol, Australia took on an obligation to protect persons who are refugees as defined by Article 1 of the Convention. However Australia is not in breach of its Convention obligations … if it returns a refugee to a ‘safe third country’ as long as no breach of Article 33 would be involved.

‘(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.’

As indicated above, a number of judgements have been made by Australian courts on the matter of effective protection. To these has been added the Border Protection Legislation Amendment Act 1999. The result is that Australia does not have protection obligations to a person who is able to reside, permanently or temporarily, in a safe third country; the word ‘safe’ is correlated to the notion of non-refoulement.

The amendment to the Migration Act states that Australia does not have protection obligations to a person who:

·               has not taken all possible steps to avail himself/herself of a right to enter and reside in a third country ‑ whether permanently or temporarily; and

·               does not have a well-founded fear of Convention based persecution in that third country; and

·               does not have a well‑founded fear of refoulement from the third country to a country where they have a well‑founded fear of Convention based persecution.”

4                     The Tribunal noted that while Syria is not a signatory to the Convention, that does not necessarily mean that a person cannot find safe haven there, though the fact that it is not a signatory is a relevant consideration.  If an asylum seeker is permitted to enter and reside in a third country and is not at risk of refoulement to his original country, that will suffice: Minister for Immigration and Multicultural Affairs v Al‑Sallal (1999) 94 FCR 549; Al‑Rahal v Minister for Immigration and Multicultural Affairs [2000] FCA 1005.  The Tribunal referred to country information and information from UNHCR and other sources that Iraqis have entered Syria and have been permitted to remain for long periods.  While some have been returned to Iraq, that was only in response to their criminal behaviour in Syria.  Country information showed that while Arabs in general do not require visas to enter Syria, Iraqis are permitted to enter only if sponsored by an Iraqi political group based in Syria.  The Tribunal recorded evidence that effecting a lawful entry into Syria is sufficient to establish that an Iraqi has the right of legal temporary residence in Syria.  It continued:

“Given that both the Syrian border and internal security are strict, the Tribunal is satisfied that although the Applicant did not actually take action to register himself, he did have clearance to remain in Syria.  This is based on his relatively long period of three years’ residence there, the fact that his wife was able to give birth in a duly registered hospital, and that he himself could establish a small business.  These are indicators that he lived a stable and ‘normal’ life, to the extent that one could in a country not one’s own.”

The Tribunal then referred to DFAT information on procedures for Iraqis entering Syria and the conditions of their residence there, and concluded that Iraqis are accepted into Syria, are permitted to reside there, and are able to find housing and employment.  On the basis of this information the Tribunal was satisfied that Syria does not refoule Iraqis seeking asylum back to the country they fear.

5                     The Tribunal accepted that the applicant has a real fear of refoulement, but it did not regard that fear as well‑founded.  That was because the DFAT information already referred to showed that deportations were restricted to cases of criminal behaviour in Syria, and that deportees were usually given time to arrange entry into another country.  The Tribunal then considered whether the applicant would be able to re‑enter Syria.  It referred again to the DFAT information that entry into Syria is usually permitted if co‑ordinated by one of the Iraqi political groups.  It was satisfied that the applicant could, while in Australia, request such sponsorship, and that this would not be denied to him, especially as his wife and children remain in Syria.  His wife could also sponsor him because she has resided in Syria for three years, and country information showed that Syrian‑based family members may sponsor relatives even if the sponsors do not have permanent residence in Syria.  The Tribunal received expert evidence that

·               an Iraqi Muslim presenting himself at the Syrian border with identity documents, though without a passport, would be permitted to enter

·               Syria dealt with the re‑admission of Iraqis on a case by case basis.  The legal entry and exit of Iraqis to and from Syria was critical to re‑admission.  Syria would not re‑admit those who had illegally entered or left Syria.

The Tribunal had already found that the applicant entered Syria legally.  It concluded that he left Syria legally under his own name with documents that attested to his true identity.  He departed from a major airport where his documents were subjected to the usual scrutiny of officials.  While he later disposed of his passport, he retained authentic identity documents.  The Tribunal was satisfied that, as a matter of practical reality and fact, these documents could be used, along with sponsorship from Iraqi relatives or organisations in Syria, to allow him to re‑enter Syria, and that protection there would be available to him.

BORDER PROTECTION LEGISLATION AMENDMENTS

6                     The Border Protection Legislation Amendment Act 1999 added sub‑ss (3) to (7) to s 36 of the Act.  Sub‑sections (3) to (5) are as follows:

“(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.”

GROUNDS OF REVIEW

Error of law ‑ s 476(1)(e)

7                     It was submitted for the applicant that “right” in s 36(3) of the Act meant a legally enforceable right to re‑enter and reside in a third country.  It was said that the Tribunal had not applied that meaning.  Rather it held that it was sufficient if as a matter of practical reality and fact the applicant would be allowed to re‑enter Syria.  The construction contended for is supported by Carr J’s decision in Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 that “right” in s 36(3) means a legally enforceable right to enter and reside.  His Honour’s decision was followed by Finn J in S115/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 540, by Mansfield J in Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 and by French J in W228 v Minister for Immigration and Multicultural Affairs [2001] FCA 860.  The Minister submitted that Applicant C was plainly wrong in this respect.  It was said that s 36(3) is declaratory of the law that existed prior to the 1999 amendments relating to third country effective protection.  That law can, in my view, be sufficiently summarised by saying that the return of a person to a third country will not contravene Article 33 of the Convention 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 as a matter of practical reality and fact the person is likely to be given effective protection and will not be at risk of being refouled to his or her original country.  See Al Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 1472; Minister for Immigration and Multicultural Affairs v Al‑Sallal (1999) 94 FCR 549; Al‑Rahal v Minister for Immigration and Multicultural Affairs [2000] FCA 1005; Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554.  I will call the principle these decisions espouse “the effective protection principle”.  Tharmalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 1180 is not inconsistent with the effective protection principle.  See pars [11], [12], [20] and [21].  The Minister submitted that s 36(3) should be interpreted as applying where, as a matter of practical reality and fact, an applicant would be permitted to enter and reside in a third country, but has not taken all possible steps to do so.  It was said that the italicised words constitute the only addition to the law as it existed before the 1999 amendments.

8                     In S115/00A Finn J at [8] summarised the effect of Applicant C as follows:

“(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 of the Convention ….”

Accordingly, denial of a protection visa because of a non‑citizen’s connection with a third country can be because s 36(3) applies to that person or because the person nonetheless has effective protection in that third country.

9                     I do not accept the Minister’s submission that Applicant C is plainly wrong.  In light of its approval by three other Judges of the Court, it would be bold so to describe it.  Indeed, I agree with both aspects of the decision ‑ that “right” in s 36(3) means a legally enforceable right to enter and reside in a third country, and that the denial of a protection visa because of a non‑citizen’s connection with a third country can be because s 36(3) applies to that person or because that person otherwise has effective protection in that country.

10                  In S115/00A the Tribunal had set out s 36(3), (4) and (5), referred to the Explanatory Memorandum to, and second reading speech on, the amending Bill, and noted that the amendments applied to the applicant.  At the conclusion of its reasons it said:

“The Tribunal notes in light of the amendments to section 36 of the Migration Actand 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….

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 … where he will not be under any risk of being refouledto his original country … (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 refoulementto Iraq or of persecution for any Convention reason in Syria ….”

Finn J rejected the Minister’s submission that, fairly analysed, the Tribunal’s reasons were consistent with it having considered the application of both s 36(3) and the effective protection principle.  His Honour treated the Tribunal as having ultimately decided the case under s 36(3) in the absence of any evidence that the applicant had a legally enforceable right to enter and reside in Syria.  The Tribunal thereby made an error of law.

11                  By way of contrast is Mansfield J’s decision in Kola.  There the Tribunal announced its conclusion as follows:

“The Tribunal is satisfied that, as a matter of practical reality and fact, … the Applicants are permitted to enter Albania and reside there and do not face a real chance of persecution for Convention reasons in that country, nor a risk that they will be refouled to the FRY.  That is, they have effective protection in Albania and, as provided in section 36(3) of the Act, Australia does not have protection obligations to them.

… [the Tribunal] finds that [the Applicants] have effective protection in Albania on the basis that they can enter that country and reside there without a real chance of being persecuted for Convention reasons and without being refouled to the FRY ….”

Mansfield J regarded the Tribunal as having correctly applied the effective protection principle.  His Honour was of the view that despite its reference to s 36(3), the Tribunal “did not really address the focus of that subsection, namely, whether the applicants had taken all possible steps to secure residence in Albania”.  Nor did it decide whether there was a “right to enter and reside”.

12                  Each case depends on its own facts.  In the present case, despite some infelicitous language, a close examination of the Tribunal’s reasons clearly discloses that it decided the case on the basis of the effective protection principle.  On page 17 of its reasons the Tribunal set out Article 33 and referred generally to cases applying the effective protection principle.  Then it said:

“To these has been added the Border Protection Legislation Amendment Act 1999.  The result is that Australia does not have protection obligations to a person who is able to reside, permanently or temporarily, in a safe third country; the word ‘safe’ is correlated to the notion of non‑refoulement.”

The Tribunal then summarised the effect of the 1999 amendments to s 36.  The above passage could have been better arranged.  The reference to the 1999 Act would more appropriately have come at the end.  Then the second sentence would have flowed naturally from the earlier reference to the cases establishing the effective protection principle, because it uses the language of the principle ‑ “is able to”.  And that is how, read fairly, the passage should be understood.  The Tribunal’s summary of the amendments correctly uses the language of “a right to enter and reside”.  Thus far, despite the misplaced sentence, the Tribunal has observed the distinction between the effective protection cases ‑ “a person who is able to reside, permanently or temporarily, in a safe third country” ‑ and s 36(3) ‑ a person who has a right to enter and reside in a third country.

13                  On page 19, in considering whether the applicant would have protection in Syria, the Tribunal said it took into account his lawful entry into Syria, the presence of family members there, and “his right, if any, of re‑entry into Syria”.  Thus the Tribunal left open whether there was any right to re‑enter for the purposes of s 36(3).  The Tribunal said it had also considered whether the protection offered to Iraqis in Syria is “effective” in the manner required “under international and Australian law”.  Then it discussed the cases on Article 33 of the Convention that espoused the “practical reality and fact” approach.  On pages 20 and 21 it considered the evidence in the light of that approach, and concluded that Iraqis are accepted into Syria, are permitted to reside there, and are allowed to find housing and employment.

14                  On page 23 the Tribunal indirectly referred to s 36(3) when it said that the fact that the applicant did not try to take advantage of the presence of a UNHCR office in Damascus was relevant to whether he could be said to have taken every possible step to avail himself of a right to enter and reside in a third country, even a country other than Syria.  It then turned to whether the applicant would be able to enter Syria in order to enjoy the protection available there.  In this connection the Tribunal said the question was “whether he is able to access the protection offered by Syria and whether, if he cannot, he still comes within the qualifications enunciated in Australian case law and in the amendments to section 36 of the Act”.  The “qualification” in relation to s 36 is doubtless the requirement that an applicant take all possible steps to avail himself of a right to enter.  It is not clear what the Tribunal had in mind when it referred to a qualification enunciated in the case law.

15                  On pages 23 and 24 the Tribunal discussed the evidence in a practical reality and fact context.  Entry into Syria was “usually permitted” if co‑ordinated by one of the Iraqi political groups.  The applicant’s wife was in a position to sponsor him.  The Tribunal said it was examining the evidence as to whether the applicant would be permitted to enter Syria in a “practical reality and fact” context.  It referred to expert evidence that an Iraqi Muslim presenting himself at the border “would be permitted to enter”, was “unlikely to be turned away”, and that Syria considered the re‑admission of Iraqis on a case by case basis, though it would not re‑admit those who had entered or left Syria illegally.  On the last page of its reasons, in announcing its conclusions, the Tribunal twice applied the practical reality and fact test:

“The Tribunal is satisfied that [the applicant’s authentic identity documents], as a matter of practical reality and fact, can be used, along with sponsorship from Iraqi relatives or organisations within Syria, to allow him to re‑enter Syria.”

And later:

“The Tribunal is satisfied that the ‘practical reality and fact’ of protection in Syria is now available to the Applicant.”

16                  It is apparent from the foregoing that although at some stages in its reasoning process the Tribunal referred to both the effective protection principle and s 36(3), it ultimately decided the case on the former basis.  It was alert to the fact that under s 36(3) the question was not whether as a matter of practical reality and fact the applicant could enter and reside in Syria, but whether he had a right to do so.  See pages 17 and 19.  It did not decide whether he had such a right.  It did not have to.  It was open to it to decide the case on the footing it did.  As appears from Applicant C, S115/00A and Kola, the denial of a protection visa because of a non‑citizen’s connection with a third country can result from either an application of s 36(3) or the fact that he or she has effective protection in the third country.  Because the two bases of denial involve different tests, it is important that the Tribunal identify which one it is applying.  The Tribunal has done that in the present case.  In that part of its reasons in which it examines the evidence and announces its conclusion, it unmistakably applies the effective protection test.  It has committed no error of law.

No evidence ‑ s 476(1)(g)

17                  The applicant’s case was also put forward on the basis that there was no evidence or other material to justify the making of the decision.  It was submitted that the Tribunal based its decision on the fact that the applicant had the right to re‑enter and reside in Syria, and this fact did not exist.  See s 476(4)(b).  As I have indicated, the Tribunal did not decide the case on that basis.  For the same reason, s 476(4)(a) could not apply.  Presumably the “particular matter” that had to be established was that the applicant had a right to enter and reside in Syria.  For the reasons I have given, on the approach properly adopted by the Tribunal, that “matter” did not have to be established in order that a protection visa be denied to the applicant.  I add that the case was argued on the basis that in order to succeed the applicant had to make out the alleged error of law.  No separate oral submission was made under the no evidence head.

CONCLUSION

18                  The application must be dismissed.

Associate:

Dated:              18 July 2001