FEDERAL COURT OF AUSTRALIA

 

 

 

V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018

 

MIGRATION – application for order of review of decision of Refugee Review Tribunal to affirm decision of delegate of Minister not to grant a protection visa – Iraqi national having spent time in Syria – finding that effective protection was and is available in Syria – finding that no risk of refoulement to Iraq – finding that no risk of persecution in Syria – finding that a capacity to re-enter Syria – 'right to enter and reside' in s 36(3) of Migration Act 1958 – nature of 'right' – capacity to bring about entry is not a right to enter – but a 'legally enforceable' right not required – s 36(3) does not affect continuing operation of s 36(2) of Act and Article 33 of Refugees Convention – finding of availability of effective protection in third country Syria including finding of capacity to bring about entry into Syria means Australia has no protection obligations under s 36(2)

 

MIGRATION – practice and procedure – powers of Federal Court in making of orders under s 481(1) of Migration Act 1958 – power to decline relief notwithstanding error in law in approach of Tribunal in setting framework of fact finding – where findings made permit of only one outcome under correct approach

 

MIGRATION – Refugees Convention 1951 – Article 33 – history and interpretation

 

 

 

Migration Act 1958 (Cth) s36, s91M

Border Protection Legislation Amendment Act 1999 (Cth)

 

Convention relating to the Status of Refugees 1951

 

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – referred to

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 – referred to

Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 – considered and followed

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 – considered and followed

Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526 – considered and followed

Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 – considered and followed in part

S115/005A v Minister for Immigration and Multicultural Affairs [2001] FCA 540 – considered and followed in part

Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 – considered and followed in part

Bitani v Minister for Immigration and Multicultural Affairs [2001] FCA 631 – considered and followed in part

W228 v Minister for Immigration and Multicultural Affairs [2001] FCA 860 – considered and followed

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 – applied

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 – applied

Tharmalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 1180 – considered and not followed

Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 – considered

Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443; (1999) 58 ALD 663 – considered and followed

Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554 – considered and distinguished

Sale v Haitian Centers Council (1993) 509 US 155, 125 L Ed 2d 128 – considered

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 – referred to

Minister for Immigration and Multicultural Affairs v Mohammed (2000) 98 FCR 405 – referred to

Danian v Secretary of State (2000) Imm AR 96 – referred to

Omar v Minister for Immigration and Multicultural Affairs [2000] FCA 1430 – referred to

Minister for Immigration and Multicultural Affairs v Farahanipour [2001] FCA 82 – referred to

Somaghi v Minister for Immigration and Multicultural Affairs (1991) 31 FCR 100 – referred to

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

Morales vMinister 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

Yuk Shan Cheung v Minister for Immigration and Ethnic Affairs (1997) 49 ALD 609 – referred to

Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693 – referred to

 

Stone, The Province and Function of Law, 1950

Robinson, Convention Relating to the Status of Refugees; Its History, Contents and Interpretation – A Commentary, 1953

Weis (ed) The Refugee Convention 1951

Goodwin-Gill, The Refugee in International Law (2^nd ed)

Hansard, Senate, 25 November 1999

 

 

V856/00A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V856 of 2000

 

 

ALLSOP J

 

SYDNEY

 

3 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	V856 of 2000

 

BETWEEN:	V856/00A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	3 AUGUST 2001
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

 

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	V856 of 2000

 

BETWEEN:	V856/00A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

 

JUDGE:	ALLSOP J
DATE:	3 AUGUST 2001
PLACE:	SYDNEY (Heard in Adelaide)

REASONS FOR JUDGMENT

 

1                     In this matter the applicant seeks an order for review by the Court of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 9 October 2000 in which the Tribunal affirmed the decision of a delegate of the respondent Minister refusing the grant of a protection visa under the Migration Act 1958 (Cth) (the Act).

2                     The applicant is a national of Iraq. He arrived in Australia by boat on 5 September 1999 without a valid entry permit. He was placed in immigration detention, where he remains. On 4 January 2000 he applied for a protection visa under the Act.

3                     The applicant has been identified by a number in order to maintain, as far as possible, his anonymity.

4                     By letter dated 19 July 2000 a delegate of the Minister informed the applicant that his application for a protection visa was refused. The reasons for that refusal were recorded in writing and dated 19 July 2000 and reflected a decision by the delegate that the applicant was not a person to whom Australia owed protection obligations under 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).

5                     The applicant sought review of that decision by application to the Tribunal made on 26 July 2000. On 5 September 2000 a hearing was held before the Tribunal. On 9 October 2000 the Tribunal handed down its decision to the effect that the applicant was not entitled to a protection visa. It is this decision in respect of which the applicant now seeks review.

6                     The decision of the Tribunal traversed many facts with which it is unnecessary to deal. There are no relevant grounds of challenge to the findings of fact, though it will be necessary to say something about the context of the fact finding in due course. The additional factual substratum necessary to understand this matter is as follows.

7                     Much of the evidence of the applicant concerning his position in Iraq and his departure from Iraq was rejected by the Tribunal as implausible and, in some respects, untruthful. The Tribunal made the following findings: The applicant (who claimed to have left Iraq on 15 July 1999) entered Syria legally, having arranged sponsorship through a Syrian contact and also a security clearance. The applicant lived in Syria for a short time before leaving Syria legally and proceeding to Australia. While the Tribunal rejected the applicant’s claims and evidence concerning the interest of the Iraqi authorities in him before July 1999, it found that it could not be satisfied that he would not be imputed with an adverse political opinion by Iraqi authorities if he applied to the Iraqi Embassy for a passport to return to Iraq (he lacking any valid passport) from his position of immigration detention. In these circumstances, it was likely that Iraqi authorities would correctly assume that he had made an application for a protection visa and impute an adverse political opinion to him. Thus the Tribunal was satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return, or be returned, to Iraq. In Syria, which he had entered legally, the applicant could obtain accommodation, employment, access to health services and free education. Iraq does not have a “security presence” in Syria, which I take to mean that Iraqi police and agents were not able to operate in Syria. There had been no normalisation of the relationship between Iraq and Syria. Iraqi asylum seekers in Syria are not returned to Iraq. There was no evidence of likely normalisation of the Iraqi/Syrian relationship in the future. There was no evidence that the applicant had a well-founded fear of persecution for a Convention reason in Syria. The Tribunal was satisfied that the applicant had effective protection in Syria while he was in Syria.

8                     The Tribunal also examined the applicant’s capacity to return to Syria. It will be necessary to return to this later, but it is necessary to appreciate what the Tribunal found about this, because at the heart of the Tribunal’s decision was the finding that the applicant was able to return to Syria where he would have effective protection from persecution and from where there was no likelihood of his being returned to Iraq.

9                     The findings by the Tribunal about this were as follows. Iraqis can enter Syria if sponsored by a family member, friend or one of the Iraqi opposition parties operating in Syria. A document evidencing the sponsorship, and security clearance, is sent to the border entry point. Once permission to enter is granted, Iraqis can enter with or without passports and are permitted to remain indefinitely without a residence permit, unless they involve themselves in illegal activities. Within Syria, Iraqis have access to free education and health services and are able to rent accommodation and engage in employment and business.

10                  The Tribunal said the following on page 26 of the decision:

The independent evidence indicates that having previously arranged to enter Syria in this manner, [the applicant], who has travelled in and out of Syria on a number of occasions, has a sufficiently strong connection to be able to arrange to do so again.

On the evidence before me, once [the applicant] again organised sponsorship, he would be able to obtain accommodation as he has in the past. He would be able to engage in employment. He would have access to free education and health services. In addition, and most significantly he would not be at risk of being returned to Iraq unless he became involved in illegal activities. There is no evidence before me to suggest that [the applicant] engaged in illegal activities whilst he was in Syria previously. Moreover, the independent evidence does not suggest that trumped up charges are brought against Iraqis in Syria as a pretext for deporting them to Iraq. In my view, as [the applicant] does not have a history of engaging in illegal activities in Syria, the chance that he would do so if he returned to Syria is remote. I am therefore of the view that the chance [the applicant] would be deported to Iraq if he returned to Syria is also remote.

[The applicant] stated that he was afraid of Iraqi intelligence services in Syria. However, I accept the independent evidence before me that Iraq does not have a security presence in Iraq [sic Syria]. I also accept the independent evidence before me that indicates that there has been no normalisation of the relationship between Iraq and Syria to the extent that Iraqi asylum seekers are being returned to Iraq. The evidence before me does not suggest that there is likely to be any such normalisation of their relationship in the reasonably foreseeable future. If, at some time in the future, the situation between Iraq and Syria changed, it would be open to [the applicant] to approach UNHCR for protection.

11                  The Tribunal reached the conclusion that it was satisfied that the applicant had “effective protection” in Syria and for that reason Australia, in accordance with subs 36(2) of the Act, did not owe protection obligations to him.

12                  A protection visa is to be issued by the Minister if he is satisfied of the criteria prescribed by the Act and regulations being met. One criterion is prescribed by subs 36(2) of the Act which is in the following terms:

(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.

13                  Subsections 36(3) to (7) were inserted into the Act by Part 6 of Schedule 1 and s 3 of the Border Protection Legislation Amendment Act 1999. Relevantly, subss 36(3) to (5) are in the following terms:

(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.

14                  After stating the factual matters referred to in paragraph [10] above, and before expressing the conclusion referred to in paragraph [11] above, the Tribunal stated the following:

In the circumstances, I am not satisfied that [the applicant] has taken all possible steps to avail himself of a right to enter and reside in Syria. I am satisfied that [the applicant] would be able to arrange to re-enter Syria through the person or organisation that previously sponsored him. I am satisfied that if he re-entered Syria, [the applicant] would be able to reside there on an indefinite basis and that the risk he would be refouled to Iraq is remote and insubstantial. Finally, there is no evidence before me to suggest that [the applicant] has a well-founded fear of persecution for a Convention reason in Syria. In the circumstances, I am satisfied that [the applicant] has effective protection in Syria and that in accordance with section 36(2) of the Act, Australia does not have protection obligations towards him.

 

15                  This last quoted paragraph makes it plain, I think, that the reasoning and analysis leading to the conclusion of a lack of protection obligations were products of the purported application of subs 36(3) to (5). In this first sentence of the quoted paragraph set out in para [14] above the Tribunal dealt with the subject matter of the applicant taking all possible steps to avail himself of a right to enter and reside in Syria. That subject matter plainly finds its source in subs 36(3). The Tribunal was “not satisfied” that the applicant had taken all such steps. If the Tribunal were minded to apply subs 36(3) it was obliged to make a finding that in fact the applicant had not taken all such steps. I need not explore the question as to whether in the light of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 this alone would vitiate the attempted application of subs 36(3), since, for the reasons expressed below, I am of the view that the Tribunal otherwise misunderstood and misapplied subs 36(3). Also, the third and fourth sentences of the paragraph reflect an attention to the matters called for by subss 36(4) and (5). They may also reflect an attention to a wider enquiry, to which consideration I will return.

16                  The complaints of the applicant identified in the amended application for review filed on 24 May 2001 were as follows. First, the Tribunal erred in terms of para 476(1)(e) of the Act by failing to interpret subs 36(3) as meaning that for the provision to apply the “right” in question (here the right to re-enter and reside in Syria) had to be a legally enforceable right. (See paragraphs 1 and 2 under section C of the amended application for review and particulars (i) and (ii) thereunder.)

17                  Secondly, and as a corollary of the first complaint, the Tribunal erred in terms of para 476(1)(e) by concluding that it was sufficient for the application of subs 36(3) to find that the applicant was able to arrange to re-enter Syria or that he had a sufficiently strong connection with Syria to be able to do so. (See paragraphs 1 and 2 and particular (iii) thereunder in section C of the amended application for review.)

18                  Thirdly, para 476(1)(g), as given content by paras 476(4)(a) and (b), was said to have been infringed because subs 36(3) was applied in circumstances where the applicant had no right to re-enter Syria and where there was no evidence of such right. During argument this ground fell away as unnecessary, since it was not in contest that, in the sense discussed later, the applicant did not have a right under Syrian law to re-enter Syria if the Minister’s primary contention about the meaning of the word “right” was not accepted by me.

19                  Thus, the issues raised by the amended application essentially concern whether the Tribunal erred in its interpretation and application of subs 36(3).

20                  Prior to 1999 a body of case law had developed in this Court, and elsewhere, about what might be called the “effective protection” of a claimant for refugee status in another country and the circumstances in which Australia would or would not be in breach of its obligations under Article 33 of the Convention. Article 33 is one of the provisions of the Convention which imposes obligations upon Contracting States by prohibiting certain conduct. It has been called “the engine-room of the Convention”: Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 at para [43].It is found among articles of the Convention regulating the treatment of refugees. Articles 31 and 32 are not unrelated. Articles 31, 32 and 33 are in the following terms:

Article 31

Refugees unlawfully in the country of refuge.

(1)         The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

(2)         The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Article 32

Expulsion

(1)    The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

(2)    The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

(3)    The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

Article 33

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.

21                  While not, in terms, dealing with the question as to when a country will or will not owe protection obligations to someone who might otherwise be a refugee within Article 1A, Article 33 has that effect, for if it can be concluded that a country would not be in breach of Article 33 in dealing with a refugee (that is someone who otherwise satisfies the definition in Article 1A) by returning him or her to the frontier of a particular country, it follows that the country does not owe that person protection obligations. The body of case law to which I have referred was to the general effect that if the refugee could be returned to another country in which he or she enjoyed “effective protection” from persecution for a Convention reason, including absence of risk of return to a country in respect of which the refugee had a relevant well-founded fear for the purposes of the Convention, then return to the country where the refugee had “effective protection” was permissible and Australia did not owe protection obligations to that person and the Minister was not obliged under the Act to grant a protection visa to that person: see generally (and not exhaustively) the decisions of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526 and Al-Sallal, supra. It will be necessary to return to Article 33 and these cases a little later, but the above suffices to identify the context for the introduction into the Act of subss 36(3) to (5).

22                  The Border Protection Legislation Amendment Act 1999 introduced not only subss 36(3) to (5) into the Act, but also (as well as other amendments to the Act and other Acts) Subdivision AK of Division 3 of Part 2 of the Act (s 91M to s 91Q). The reason for the introduction of this subdivision is set out in s 91M, which is in the following terms:

s 91M Reason for this Subdivision

 

This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8

23                  I will deal briefly with Subdivision AK later.

24                  When moving amendments in the Senate to the Border Protection Legislation Amendment Bill 1999, which included Subdivision AK and subss 36(3) to (5), Senator Patterson said the following (I have numbered each paragraph for ease of identification later):

i)                    These measures are aimed at curbing the growing number of people arriving illegally in Australia, often through people smuggling operations.

ii)                  The Refugees Convention and Protocol have, from inception, been intended to provide asylum for refugees with no other country to turn to.

iii)                Increasingly, however, it has been observed that asylum seekers are taking advantage of the Convention’s arrangements.

iv)                Some refugee claimants may be nationals of more than one country, or have rights of return or entry to another country, where they would be protected against persecution.

v)                  Such people attempt to use the refugee process as a means of obtaining residence in the country of their choice, without taking reasonable steps to avail themselves of protection which might already be available to them elsewhere.

vi)                This practice, widely referred to as “forum shopping”, represents an increasing problem faced by Australia and other countries viewed as desirable migration destinations.

vii)              It also imposes unnecessary costs on the taxpayer and represents an often organised attempt to subvert immigration and border controls.

viii)            But most importantly, it directly undercuts the ability of countries, such as Australia, to offer international resettlement to people on a needs basis.

ix)                Domestic case law has generally re-inforced the principle that Australia does not owe protection obligations under the Refugees Convention, to those who have protection in other countries.

x)                  It has also developed the principle that pre-existing avenues for protection should be ruled out before a person’s claim to refugee status in Australia is considered.

xi)                Under current arrangements the question of whether a person has protection in another country can only be considered as part of the decision-making process for a protection visa application.

xii)              This increases the time and cost associated with reaching a decision and, for unsuccessful applicants, opens up the right to seek administrative review.

xiii)            For unauthorised arrivals, it extends the period of time that they are detained and adds to the current pressure on our detention centres.

xiv)            For those who have a right of re-entry to a safe third country, it also raises the risk that, by the time the application has been finally determined, and avenues for judicial review have been exhausted, their rights of re-entry will have expired.

xv)              This has occurred in a number of recent cases, with the result that Australia was found to owe protection obligations to people who have voluntarily forsaken countries of first asylum.

xvi)            The amendments will introduce into the Migration Act a new subdivision which will apply to non-citizens who are dual or multiple nationals, or who have a right to re-enter and reside in a third country.

xvii)          A statutory bar will prevent such non-citizens while onshore from making a valid application for a protection visa if they have been immigration cleared, or, if they have not been immigration cleared, from making a valid application for any visa.

xviii)        The statutory bar will be accompanied by discretionary provisions for ministerial intervention to lift the bar in the public interest.

xix)            In conjunction with ministerial guidelines to provide guidance to departmental staff on cases that are to be brought to the Minister’s attention, this will ensure that Australia meets its protection obligations.

xx)              This will ensure that where a person may not have protection in a third country, the statutory bar would be lifted to allow them to make an application.

xxi)            The amendments also include an interpretative provision to make it clear that Australia does not owe protection obligations to non-citizens if they have not taken all possible steps to avail themselves of a right to enter and reside in a country other than Australia.

xxii)          However, this will not apply in relation to countries in respect of which non-citizens have a well-founded fear of being persecuted, or of being returned to another country in which they may be persecuted.

…

xxiii)        These measures will ensure that only those who most need our assistance – those with no other country to turn to are able to enter our protection system.

xxiv)        The amendments in no way diminish the government’s commitment to the Refugees Convention, and to providing humanitarian assistance to those most in need.

xxv)          Indeed they work to support the fundamental framework of protection for refugees in the face of increasingly sophisticated attempts by smugglers and “forum shoppers” to exploit this framework. [Hansard, Senate, 25 November 1999, pp 10688-9]

25                  The primary submissions of the parties concerning the proper interpretation of subs 36(3) can be put shortly. (I should add that this question has been argued in the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Applicant C, on appeal from the decision of Carr J mentioned below. Judgment is reserved.) The applicant, drawing upon a number of first instance judgments of this Court (Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229, S115/005A v Minister for Immigration and Multicultural Affairs [2001] FCA 540, Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 and Bitani v Minister for Immigration and Multicultural Affairs [2001] FCA 631, to which now can be added W228 v Minister for Immigration and Multicultural Affairs [2001] FCA 860) submitted that for s36(3) to apply there must be a legally enforceable right to re-enter and reside in Syria. The respondent, on the other hand, submitted that the context and purpose of the provision as one dealing with “forum shopping”, the width of the words of the subsection (“however that right arose or is expressed”) and the intention (it was said), in effect, to codify the previous law on “effective protection”, which previous law (it was said) eschewed any need for rights strictly so-called and emphasised “practical reality and fact”, all assisted in the construction of the word “right” as meaning practical capacity to bring about a lawful entry; that is, it meant capability or capacity to bring about a permission or right to re-enter and reside in Syria.

26                  I reject the respondent’s submissions. The word “right” was used in the provision. The word was used by Senator Patterson, either in terms or in substantive effect: see paras (iv), (xiv), (xvi) and (xxi) in para [24] above. A practical capacity to bring about a lawful permission is in no sense a “right” to do what the permission allows to be done. It might be otherwise if it could be shown that a statute or piece of positive law of the country in question granted a permission on satisfaction of certain preconditions. It may be that in those circumstances, perhaps by reference to, and with the benefit of an understanding of, that country’s system of law, the person had a right, albeit inchoate. However, the submission of the respondent was broader than that: it was put that practical capacity to bring about lawful entry was sufficient for the application of subs 36(3). The submission had to be so broad, because that is how the Tribunal approached the matter. In the paragraphs quoted in paras [10] and [14] above, the Tribunal expressed its reasons for concluding that steps had not been taken by the applicant to avail himself of the right to re-enter Syria, in terms of his ability to arrange to re-enter Syria.

27                  It is unnecessary to explore the nature of the fact finding involved in ascertaining of such a right under foreign law as a general matter.

28                  I also reject the submission that subss 36(3) to (5) worked a codification of the pre-existing law concerning the existence of effective protection in a practical sense in a third country. In so doing I rely on and agree with, to that extent, the reasons for judgment of Finn J in S115/005A, supra, Mansfield J in Kola, supra, especially [36-37] and in Bitani, supra, especially [25] and French J in W228, supra.

29                  Also, I agree with Finn J, Mansfield J and French J that subs 36(3) was and is not intended to detract from the operation, otherwise, of subs 36(2) and, through it, of the Convention, and, in particular, Article 33.

30                  As I have noted earlier, it was not in contest that if I did not accept the respondent’s arguments about the meaning of the word “right” (which I do not) there was no right (of whatever kind) possessed by the applicant to re-enter Syria.

31                  I say “of whatever kind” because by rejecting the respondent’s submissions that “right” means capability to bring about entry or capability to bring about a permission to enter and reside does not mean that I fully agree with the applicant’s submissions. For my part, I do not see the need to construe “right” in subs 36(3) as a “legally enforceable right” as Carr J did in Applicant C, supra. Although I agree that “right” means something more than a capacity or capability lawfully to enter and reside in a particular country or to bring about a permission to enter and reside, I do not think that it follows that the subsection is only referring to what might be described as a right in the strict sense, having the Hohfeldian “jural correlative” of duty: Stone, The Province and Function of Law (Harvard University Press, 1950) pp 115-122, or to rights that can be said to be legally enforceable. Carr J in Applicant C, supra, at para [28] construed subs 36(3) as “consonant with Article 1E of the Convention”. A right under Article 1E is one (arising from possession of nationality) that is embedded in the law of the country, with correlative obligations on the state in question. In my view, the text of subs 36(3) is more relevant and tends to the contrary. The phrase in subs 36(3) “howsoever that right arose or is expressed” assists in the recognition that the source and incidents of the right can be diverse. It also assists in the recognition that “right” is intended to be a wide conception. Especially in the light of the above phrase, I see no reason to restrict the meaning of the word “right” to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning a liberty or permission or privilege which does not give rise to any particular duty upon the state in question. Such a liberty, permission or privilege would obtain its effective substance from its grant and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise, rather than from the existence within the positive law of the state in question of a correlative duty, justiciable and enforceable in law, to recognise the right. It may be that in many cases if the right is to survive outside, and divorced from residence in, the country in question it may well be a right in the strict sense, but I do not think that that conclusion follows as a matter of statutory construction.

32                  For present purposes my disagreement does not matter because I am of the view that the Tribunal erred in dealing with subs 36(3) on the basis that it did .

33                  However, that error is not the end of the matter. A consequence of my view that the insertion of subss 36(3) to (7) did not remove a consideration of the operation of Article 33 from the assessment as to whether Australia owes protection obligations for the purposes of subs 36(2) is that it is necessary to examine the Tribunal’s decision and reasons to ascertain whether the decision can otherwise be supported by reference to the law on “effective protection” and Article 33: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, 364-65 at para [59] and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 576-77.

34                  The first submission put by the applicant was that for it to be able to be concluded that Australia did not owe protection obligations to someone who was otherwise a refugee because that person could be returned to a country which provided effective protection, without breach of Article 33, that person had to have a legally enforceable right or at least a right of some kind to enter that “safe” country.

35                  After the hearing of the matter in Adelaide, my attention was drawn to the decision of the Full Court in Tharmalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 1180. There, a Sri Lankan national who had been granted asylum under the Convention in France sought protection in Australia. He claimed to be at risk of harm from the Tamil Tigers in France. He claimed a colleague of like views had been assassinated in France by them. The questions of effective protection, return to France and Article 33 arose. The Tribunal found, amongst other things, that the applicant had a right to re-enter France. The applicant appealed saying that this was not a finding that was open to the Tribunal. The primary judge was of the view that it was unnecessary to find as a precondition for refusing to hear the applicant’s application on its merits that the applicant had a right of re-entry to France. That is, the primary judge was of the view that for a conclusion to be reached that Australia did not owe protection obligations without hearing the merits of the Article 1A claim there was no need for it to be found that a right of entry or re-entry to the country in question existed. The Full Court dismissed the appeal, but notbecause it agreed with the primary judge’s view in this regard, indeed it dismissed the appeal in spite of it. The Full Court found that the Tribunal had made a finding, which was open to it, that there was a right of re-entry: Tharmalingam, supra, para [12]. It is plain that were it not for this finding of the Tribunal, the Full Court would have allowed the appeal. At para [11] the Court referred to the following passage in the judgment of von Doussa J (with whom Moore and Sackville JJ agreed) in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at page 562:

It is not necessary for the purposes of disposing of this appeal to seek to chart the outer boundaries of the principles of international law which permit a contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status. It is sufficient to conclude that international law does not preclude a contracting State from taking this course where it is proposed to return the asylum seeker to a third country which has already recognised that person’s status as a refugee, and has accorded that person effective protection, including a right to reside, enter and re-enter that country.

36                  The Full Court in Tharmalingam then said the following, at para [12]:

We accept that the approach taken by the Full Court in Thiyagarajah requires a finding that the applicant has a right to re-enter the third country before the Tribunal is relieved of the necessity to consider the merits of the application. [emphasis in original]

37                  I will deal with the question whether I am bound to follow this view later. Strictly speaking it was not, I think, part of the ratio of Tharmalingam, but it was unequivocally expressed.

38                  If I am bound to follow these views then I must accede to the submission of the applicant referred to in para [34] above, at least to the extent that it accords with the view which I have expressed about the nature of the word “right”. I do not see anything in Tharmalingam contrary to the views which I have expressed about the word “right” (albeit in the context of subs 36(3)) which views I would apply to any need for a “right” in this context.

39                  For my own part, I would respectfully disagree that this conclusion of the Full Court in Tharmalingam was mandated by the paragraph in Thiyagarajah referred to in para [35] above, or by anything in Thiyagarajah. My view, uninstructed by Tharmalingam, is that though a number of cases, including Thiyagarajah, displayed facts which included a right to enter, none of them had been decided on the basis of the need for the existence of such a right. I will briefly deal with each of these cases.

40                  In Thiyagarajah the applicant had the benefit of having been granted refugee status in France and so had the benefit of Article 28 of the Convention which he had invoked and which had enabled him to obtain travel documentation entitling him to re-enter France. It was for this reason, it seems to me, that von Doussa J said on page 562:

It is not necessary for the purposes of disposing of this appeal to seek to chart the outer boundaries of the principles of international law which permit a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status.

41                  His Honour could say this because (as he went on to say) it was sufficient to decide that a Contracting State could do this when, amongst other things, the asylum seeker had a right to re-enter the country in question. I do not read his Honour as identifying that right to re-enter as necessary in all cases. He eschewed the task of stating the limits of the application of Article 33.

42                  In Rajendran, supra the Full Court applied Thiyagarajah to circumstances where the applicant had permanent residence status and effective protection in the third country, though not refugee status. The applicant in that case had a right to enter New Zealand. At first instance in Rajendran (4 May 1998) Mansfield J summed up the effect of Thiyagarajah in terms which are, if I may respectfully say, useful to note:

In substance, the Full Court decision is to the effect that, for the purposes of determining whether Australia has protection obligations under the Convention, it is necessary to look to the individual circumstances of a particular visa applicant to determine whether, if Australia were to return that person to the third or intermediate country, Australia might be in breach of one of the operative Articles of the Convention (relevantly, Art 33). If not, then whether or not the visa applicant is a ‘refugee’ under Art 1, Australia has no protection obligations in respect of that person. If Australia would be in breach by such action, then it will be necessary to determine whether that person is a ‘refugee’ under Art 1.” [emphasis added]

43                  In Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 Weinberg J was dealing with the circumstances of claimants who had permanent residency in Germany, but who had left there and had come to Australia seeking asylum. There was a complaint by the Minister that the Tribunal had not dealt with Article 33 and its consequences. There were some findings by the delegate and the Tribunal about rights of re-entry into Germany of less than pellucid clarity. Counsel for the Minister conceded (see p 13 B-C) that “if the RRT had found that the [claimants] could not, under any circumstances, re-enter Germany, even on a temporary basis, there would be no requirement that the RRT consider the operation of Article 33”. It was in that context that Weinberg J then examined the evidence about the applicants’ rights to re-enter Germany. In that enquiry it was seen as important to distinguish between an entitlement to permanent residence, on the one hand (which if lost did not prevent an Article 33 enquiry: p 13 E-F), and, on the other hand, an entitlement to enter temporarily, which could enable protection to be claimed there (p 13 F-G). It was not clear that the applicants did not have rights to re-enter on a temporary basis (p 18 A-D). The Tribunal had not dealt with that matter after it had found that the applicants had lost their rights to enter Germany and remain on a permanent basis. The matter was therefore returned to the Tribunal for further fact finding. By reason of the way this case was argued and dealt with it was unnecessary for Weinberg J to decide whether a right in the asylum seeker to enter the safe third country (as opposed to a capacity to bring about entry) was a necessary precondition to the invocation of Article 33 to deny the existence of protection obligations.

44                  In Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443; (1999) 58 ALD 663 Emmett J considered the question of Article 33 and return to a “safe third country”. The Tribunal had found, after examining Jordanian law, that the applicant had the right to reside in, enter and re-enter Jordan: see Al-Zafiry para [12]. This was as a result of the Tribunal posing for itself, as the relevant question, whether the applicant had a right to reside in, enter and re-enter the country and whether he had effective protection there: see Al-Zafiry paras [15] and [22]. The error claimed by the applicant in this regard was that in doing this the Tribunal addressed the wrong question and should have addressed the question as to whether the applicant had a legally enforceable right to enter, re-enter and reside in Jordan or as to whether the applicant had a legally enforceable right to have any application for refugee status considered in accordance with the Convention. Emmett J rejected the need for the existence of a legally enforceable right to enter or a legally enforceable right to have an application for refugee status so determined. It is to be recalled that the Tribunal had found that the applicant had a right to re-enter Jordan. It is in that context that Emmett J said what he did at paras [25] and [26]:

[25] I do not consider that there is any warrant in the observations made by von Doussa J for concluding that his Honour was intending to refer to a legally enforceable right. That was certainly not necessary for the decision in Thiyagarajah. In that case, the applicant had been given permanent residence in New Zealand, and the Full Court held that that was sufficient to satisfy any concern about possible contravention of Article 33. Article 33 does not speak in terms of any rights. It speaks only in terms of refoulement to the frontiers or territories where an applicant’s life or freedom would be threatened on account of Convention reasons.

[26] I consider that all that von Doussa J was saying (and this is consistent with the approach adopted by the Full Court in Rajendran and by Weinberg J in Gnanapiragasam) is that so long 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 refouled to his original country, that will suffice.

 

45                  Because of the context in which his Honour was called on to deal with Mr Al-Zafiry’s claim, Emmett J can be seen as quite plainly saying (in circumstances where there was a right to re-enter the country in question) that there was no need for a legally enforceable right to enter the country and that once within the country in question one judges, as a matter of practical reality and fact, whether the applicant is likely to be accorded effective protection there and one is not restricted to seeing whether he had a legally enforceable right to have his status judged in accordance with the Convention. Whether or not his Honour’s reasons stand, strictly speaking, as authority for the proposition that the Tribunal only has to assess as a matter of practical reality and fact whether the applicant will be allowed entry is another question. The words of Emmett J in para [26] of Al-Zafiry are wide enough to encompass this wider proposition; however given the findings of the Tribunal about a right to enter, his Honour did not need to go so far, though he was called upon to consider, and he rejected, the need for a legally enforceable right to enter. In any event, Al-Zafiry is not authority for the proposition that a right, of some kind, is needed as a precondition for an application of Article 33. It is clear authority for the proposition that no legally enforceable right to enter the country in question is necessary for an application of an Article 33 analysis. It is expressed in terms wide enough to support the wider proposition, and it is logically consistent with the wider proposition, that no right, of any kind, to enter the country in question is necessary for an application of an analysis based on Article 33 which would deny protection obligations.

46                  In Al-Sallal, supra, the Full Court decided that Australia does not owe protection obligations to someone who can enjoy effective protection from persecution in “a safe third country” notwithstanding that the country in question is not a signatory to the Convention. The claimant was a stateless Bedoon, born in Kuwait. There was evidence of Jordanian law which made provision for the issue of international laissez-passers to persons such as him. Thus, the claimant had a right to enter Jordan. In rejecting the argument that the third country had to be a Convention signatory in order to be taken as able to give relevant protection, the Full Court agreed with Emmett J’s expression of the matter in Al-Zafiry: that the assessment of the “effective protection” was as a matter of practical reality and fact: Al-Sallal, supra at paras [42] and [46]. It was, strictly speaking, unnecessary for the court in Al-Sallal to concern itself with the right of re-entry, since such a right was found by the Tribunal to exist. However, the Full Court expressly adopted what Emmett J said in Al-Zafiry (at para [26]) when it said at para [42]:

We agree and adopt the observation of Emmett J in Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443, the appeal from which was heard by us immediately following the present appeal. His Honour said (at[26]):

“I consider that all that von Doussa J was saying (and this is consistent with the approach adopted by the Full Court in Rajendran and by Weinberg J in Gnanapiragasam) is that so long as, as a matter for practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and live in a third country where he will not be under any risk of being refouled to his original country, that will suffice.”

47                  In Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554 French J discussed Article 33 at some length. The discussion turned upon whether the Tribunal’s finding that the claimant had a right to enter Greece could be sustained under para 476(1)(g) of the Act: see Patto para [38]. There was no evidence to support that finding. His Honour said the following about the right to re-enter Greece (see para [40]):

That was a fact critical to its decision that safe third country protection was available in Greece which in turn went to the question whether return to Greece would breach Australia’s obligations under Article 33.

48                  French J also dealt with the “fall-back position” of the practical reality of being permitted to enter: paras [40] and [38].

49                  Both bases (right to enter and practical reality of being permitted to enter) suffered from a lack of evidence. I do not read his Honour’s use of the word “critical” in the quotation referred to in para [47] above as intended to mean necessary, but rather as intended to mean important and central. His Honour’s decision does not stand as authority for the necessity for there to be a right to enter the country where “effective protection” is available before it can be concluded that a person can be returned to that country without a breach of Article 33.

50                  Carr J did not discuss Article 33 in Applicant C, supra, beyond the brief discussion at para [19].

51                  In S115/00A supra Finn J said at para [8]:

The effect of Carr J's decision [Applicant C] 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.

52                  With respect, it is not clear to me that proposition (ii) referred to by Finn J flows from Applicant C, though it may be said to flow from the wider reading of Al-Zafiry and Al-Sallal togetherwith Applicant C. Apart from, arguably, Al-Zafiry and Al-Sallal no case stated that it was not necessary to have a right to enter the country in question for an Article 33 analysis to apply; nor, apart from Tharmalingam, did any case decide that a right to enter was required for the consequences of Article 33 to deny protection obligations arising.

53                  In Kola, supra, Mansfield J was dealing with the claims of ethnic Kosovars who were citizens of the former Federal Republic of Yugoslavia. It was found by the Tribunal that both had the right to return to Albania whence they had come to Australia and where they had effective protection.

54                  In Bitani, supra, Mansfield J was dealing with the claims of other ethnic Kosovars who were nationals of the former Federal Republic of Yugoslavia. Again, there was a finding based on evidence that they had a right to return to Albania and that they would enjoy effective protection there.

55                  Neither Kola nor Bitani stands as authority for the requirement for a right to enter or re-enter before an analysis based on Article 33 can operate to deny the existence of protection obligations.

56                  In W228, supra, French J was dealing, as I am here, with an Iraqi national found to have protection available in Syria. In W228 the Tribunal had focussed on the claimant’s capacity to return to Syria and found that he had the capability or capacity to arrange sponsorship and to re-enter Syria. In those circumstances French J distinguished Patto where that body of fact finding had not been properly made by the Tribunal. It is plain from para [43] that French J expressly held that a right to return was unnecessary. He said (at para [43]):

[43] Notwithstanding the Tribunal’s explicit reference to s 36(3) in the earlier part of its reasons and the absence of reference to Article 33, I do not think that it follows that it assumed that the applicant had any legal right to re-enter Syria. It was, however, open on the basis of the findings about the history of entry to, exit from and return to Syria, and the continuing family connection there, to infer that sponsorship would be available to the applicant to enable his return. In that sense it was open to the Tribunal to form the view it did that he “could” return. The case differs from Patto where the applicant had been an illegal immigrant in Greece and although his presence there was apparently tolerated for an extended period there was no basis for the inference that he would be allowed to return having once left the country.

57                  His Honour went on to say (at paras [44] and [45]):

[44] In a sense the question whether the applicant “could” enter Syria is academic. It will be proven only if he successfully arranges sponsorship. If sponsorship turns out not to be available then any step by Australia to send him back to Iraq, having regard to the findings of the Tribunal that he is a refugee from that country, would be in clear breach of its non-refoulement obligation under Article 33. On the other hand, if there are steps that the applicant can take to secure his return to a safe third country, it seems a singularly unattractive proposition that he should be able to secure his place in Australia by refusing to take such steps.

[45] In my opinion the position is analogous to that in which an applicant for a protection visa is found to be able, as a matter of practical reality, to re-enter a safe third country from which he came, albeit he may first have to apply for a visa. Provided Australia is prepared to return him to that country if a visa be granted, then it has discharged its obligations. If the applicant refuses to apply for a visa to enter the third country he has put himself in a position in which return to the country from which he is seeking refuge may be the only option available. In that event, a failure to co-operate in obtaining the necessary travel documents to the safe third country could properly be viewed as a constructive waiver of his claim to protection under the Convention. This is not to suggest that such a situation has or would occur in this case.

58                  I will return to the matters canvassed in these last two paragraphs in a moment. I agree with French J in W228 that for an analysis based on Article 33 to deny protection obligations it is not necessary for there to be a right of entry into the safe third country.

59                  I have set out the text of Article 33 earlier. Some of the history of the negotiation of Article 33 is described in the opinion of the United States Supreme Court in Sale v Haitian Centers Council (1993) 509 US 155, 125 L Ed 2d 128 delivered by Stevens J, especially at 509 US pp 179 - 187 and at 125 L Ed 2d pp 149 – 155, in Robinson, Convention Relating to the Status of Refugees; Its History, Contents and Interpretation – A Commentary at pp 160 – 166 and in Weis (ed) The Refugee Convention 1951 (Cambridge University Press)at pp 325-344. Though the text of the Convention is to be given primacy, the context, object and purpose of the treaty must be considered: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 240, 254-5 and 277. It appears that the French verb “refouler” was inserted to give context to the word “return”: see Sale v Haitian Centers Council, supra and to deal with what might have been seen as a wider English meaning of “return” unqualified by the French “refouler”, which contained the element of meaning of repulse, expel, repel or drive back. It was important, it would appear, for some countries at the Convention to ensure that the strictures of Article 33 only applied once the refugee came across the border: see Robinson, op.cit. at p 163. It was this distinction, recognised in Sale v Haitian Centers Council, which led to the decision of the Supreme Court that Article 33 of the Convention was not offended by boatloads of Haitians heading for the Florida coast being interdicted in international waters and turned back. Leaving aside that question, it does appear that the word “return” is not limited to taking back to the country whence the person came. As the Supreme Court said in Sale 509 US at p 182 (125 L Ed 2d at p 151) at footnote 39:

Under Article 33, after all, a nation is not prevented from sending a threatened refugee back only to his homeland, or even to the country that he has most recently departed: in some cases Article 33 would even prevent a nation from sending a refugee to a country where he had never been. Because the word “return” in its common meaning, would make no sense in that situation (one cannot return, or be returned, to a place one has never been), we think it means something closer to “exclude” than “send back”.

60                  Robinson, op.cit. discusses the intended meaning of the words “expel or return” at p162. He refers to the element of judicial or administrative decision in the word “expel” and the physical act of ejectment in the word “return”, changed from “reconduction” in an earlier draft and qualified by the French “refouler”.

61                  It seems to me from a consideration of the text of Article 33 and the surrounding material that the notion of expulsion or return can include compulsory taking or reconducting back to somewhere and can include physically ejecting from the national territory. The phrase “to the frontiers” of another territory carries with it an element of destination.

62                  Goodwin-Gill, The Refugee in International Law (2^nd ed) at page 343 expresses the view that international law permits the return of refugees and asylum seekers to another state “if there is substantial evidence of admissibility, such as possession of a Convention travel document or other proof of entitlement to enter”. On the same page he refers to his view of “best practice” in connection with return of refugees only if the receiving state is able to provide certain effective guarantees, including a willingness to readmit asylum seekers. I do not see the need for “admissibility” or substantial evidence of a “willingness” in the receiving state to readmit as being contrary to a view that capacity to return lawfully and a willingness in the State to receive on certain conditions, if those conditions can be brought about, are sufficient to found compliance with Article 33.

63                  In Weis (ed), op. cit. it is recorded that the French representative at the conference of Plenipotentiaries pointed out (at p 330):

“… that a State had not the right to return a refugee without a visa to another country than to his country of origin or of his lawful residence. Admittedly, it did sometimes happen, but the practice was illegal.”

64                  Despite this reference, I do not see in the text of the Convention or Article 33 in the context of the surrounding material anything which would lead to the conclusion that it was intended that a Contracting State would be in breach of its international obligations by expelling or returning (in the sense of taking back to or expelling) a claimant to a country into which that person could gain entry (lawfully) and, in which, upon entry, that person would be safe, because he or she did not have some pre-existing right of entry or re-entry into that other country. I think that this conclusion is reinforced by the text and purpose of Articles 31(2) and 32(3) which contemplate efforts to bring about lawful entry, not pre-existing rights to enter.

65                  In these circumstances one would need to understand whether, upon expulsion to or return to the country in question, that person could gain entry, that is one would need to understand whether that person could be returned to that country and if entry could be gained and return could be effected, whether that person would be safe in the relevant sense.

66                  None of this is to say that a right of entry or re-entry is irrelevant to the analysis under Article 33. If there be such a right, then attention can be focussed at once upon the quality of the protection within the relevant country upon entry. If, however, there be no right of entry, the question of entry must form part of the factual analysis: will the refugee be placed at risk of refoulement to the country of persecution if he or she is returned to the country in question?

67                  French J in W228, supra, approached the question in the circumstances before him, which are similar to those before me, as set out in paras [43], [44] and [45] of his judgment. (See paras [56] and [57] above.) By that approach, the compulsory nature or context of the return does not, of itself, pose any further framework of consideration (at least initially) beyond an examination of the claimant’s own capacity to re-enter Syria. If, in the future, his entry was not permitted by Syria then his claim for asylum would have to be re-analysed by the Minister on the basis that he not only had no right, but also no capacity, to enter Syria. French J was of the view (see para [45] in W228) that if a claimant had the capacity to bring about entry or re-entry that was a sufficient basis upon which to found the Article 33 analysis. I agree, as long as the Tribunal directs itself to the question of whether the claimant can, now, be returned to Syria. French J also said that any deliberate choice by the claimant not to put into effect that capacity was possibly “a constructive waiver of his claim to protection”. I deal with this below.

68                  It is for the Tribunal to decide, as part of an enquiry as to the availability of effective protection in Syria, whether the claimant can gain entry into Syria. If the claimant has it within his power or capacity, now, to gain entry into Syria and no issue arises before the Tribunal as to the unwillingness of the claimant to exercise that power or capacity, it is then open for the Tribunal to find that he can be returned to Syria where he could gain entry. If some issue arises before the Tribunal as to whether the claimant is willing to exercise that power or capacity, the Tribunal will have to assess this factually. If it concludes that the claimant is not so willing, other questions will, or may, intrude. It may be that the Minister can show that, in these circumstances, Australia can nevertheless effect his entry into Syria lawfully by the exercise of bilateral arrangements or relationships. If this is the case, these matters may also affect the assessment of the claimant’s safety from refoulement upon return; or, it may be that the question of constructive waiver of his claim for protection arises: see French J in W228, supra; or, it may be that the claimant is otherwise precluded from claiming protection by reason of his deliberate act or omission. (Issues of the kind in the following cases might arise: Minister for Immigration and Multicultural Affairs v Mohammed (2000) 98 FCR 405; Danian v Secretary of State [2000] Imm AR 96; Omar v Minister for Immigration and Multicultural Affairs [2000] FCA 1430; Minister for Immigration and Multicultural Affairs v Farahanipour [2001] FCA 82; cf Somaghi v Minister for Immigration and Multicultural Affairs (1991) 31 FCR 100, 116-118.) But these questions only need be dealt with if they are in fact thrown up by the factual circumstances (including the claims) of the particular claimant: cf Mansfield J in Rajendran, (see para [42] above). It is unnecessary for me to consider these questions. I note that the question of a claimant’s own conduct in the place where asylum is sought is likely to be the subject of High Court consideration (special leave having been granted in Minister for Immigration and Multicultural Affairs v Mohammed P49/2000, special leave granted 22 June 2001).

69                  It is therefore the task of the Tribunal to assess and decide whether the claimant can be returned to Syria, in point of fact, and if returned, whether he will have effective protection there, and, thus, whether by returning him, Australia will be in breach of Article 33.

70                  If the finding is that he can gain entry and so can be returned and that he would be safe upon entry into Syria, then Australia, it seems to me, does not now owe protection obligations to the claimant. I think this approach is also in accordance with the judgment of French J in W228 and the judgments of RD Nicholson J in Minister for Immigration and Multicultural Affairs v Kabail (1999) 93 FCR 498, Al-Rahal v Minister for Immigration and Multicultural Affairs [2000] FCA 1005 and Aluboodi v Minister for Immigration and Multicultural Affairs [2000] FCA 1498.

71                  If, as it turns out, the claimant is refused entry by Syria when, with the passage of time, the Tribunal’s fact finding is tested by future events, then a different factual matrix will at that time have emerged and Australia may well then owe him protection obligations. But this, in one sense, would be no different from a country in the future refusing to honour a right of entry which, hitherto, was thought to exist. Any fact finding about either a right to enter or a capacity to enter might, in theory, be falsified by future events and circumstances. The Tribunal can only find the facts and assess Australia’s protection obligations on the basis of those facts found to be existing at the time of decision and thrown up for consideration at that time.

72                  For these reasons, uninstructed by Tharmalingam, I would have expressed the view that a right to enter Syria was not necessary to call into relevance an analysis under Article 33; but that it was sufficient, and indeed necessary, if there were no such right, for the Tribunal to assess whether the claimant could, as a factual matter, be returned to Syria to enjoy relevant protection.

73                  The question then is whether I am bound by Tharmalingam to reject the views which I have otherwise expressed about Article 33.

74                  In the light of the Full Court’s approval in Al-Sallal of Emmett J’s judgment in Al-Zafiry and even though in neither case was it strictly necessary to decide precisely this question, and though Tharmalingam was not referred to in either judgment, in my view there has been in Al-Sallal by adoption of the views of Emmett J in Al-Zafiry a sufficient rejection of the effect of what appears in para [12] of Tharmalingam for me not to be obliged to apply it. In these circumstances I propose to approach the question of entry into Syria for the purposes of Article 33 on the basis of Al-Sallal, Al-Zafiry and W228, to the effect that it is not a precondition for an analysis based on Article 33 to deny protection obligations that the claimant has a right to enter Syria; but, rather, the matter can be approached on the basis which I have set out in paras [58] to [72] above.

75                  I turn then to examine further the reasons of the Tribunal. As I indicated earlier in para [15] the approach of the Tribunal was to utilise subs 36(3) in an assessment of the question as to the existence of protection obligations. The factual enquiry engaged in was directed to assessing whether, now, the applicant was able, as a matter of capability and capacity, to return to Syria. As I have indicated, that is the wrong question for subs 36(3), but it is a central question for an analysis based on Article 33. Article 33 was not identified specifically in any analysis expressed by the Tribunal. However, the Tribunal asked itself whether the applicant “has effective protection in Syria”. It did this by stating “in relation to this” (that is the question of the current existence of effective protection in Syria) (see p.25 of the decision, p 128 of the court book):

I am required to consider whether [the applicant] has taken all possible steps to avail himself of a right to enter and reside in Syria, whether on a temporary or a permanent basis. I am also required to consider whether [the applicant] has a well-founded fear of being persecuted in Syria or of being refouled to Iraq by the Syrian authorities.

76                  For this task the Tribunal examined what the applicant could now do to re-enter Syria. I have already referred to these findings in paragraphs [7] to [11] and [14] above. In my view, recognising the need to approach the written reasons for decision in the manner described by the High Court in Wu Shan Liang, supra at 271-2, the Tribunal has made findings that the applicant has it within his power to arrange for his re-entry into Syria and that he can return to Syria.

77                  It was said that the fact finding of the Tribunal did not direct itself to the question of re-acquisition of capacity to enter and remain in Syria; that the ability to arrange sponsorship was assumed because of a focus on the past brought about by the framework of analysis being set by subs 36(3): that is, the failure (in the past) to take all possible steps. I do not agree. Though the Tribunal was misguided in the legal framework adopted, it dealt with factual questions central to an analysis based on Article 33 from a perspective which was not such as to distort or otherwise make unreliable that fact finding. It found, in effect, that the applicant could, now, re-enter Syria.

78                  An issue, of the kind referred to in para [68] above, that he would not exercise that power if he was required to return, did not arise.

79                  The Tribunal has considered the relevant issues and made findings which permit of only one outcome under an analysis based on Article 33. In these circumstances, the fact that the Tribunal misconceived the meaning of subs 36(3) does not lead to the decision being set aside. I am able to adopt and ought adopt a course to give effect to the decision that should have been made on the facts in the light of further, or different, considerations: Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, 364-65 at para [59] and Guo, supra at 576-7. Subsection 481(1) of the Act permits the declining of relief, even if there has been an error law. Finn J in S115/00A, supra at para [26] referred to cases which have discussed this course: Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223, 238; Morales vMinister for Immigration and Ethnic Affairs (1995) 60 FCR 550, 560-62; Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206, 213 –14; Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301; and Santa Sabina College v Minister for Education (1985) 58 ALR 527, 540. (See also Yuk Shan Cheung v Minister for Immigration and Ethnic Affairs (1997) 49 ALD 609, 616; and Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693, 697-98.) I do not see these cases as entitling or at least requiring me to remit the matter where the fact finding has been effected by the right question being asked (although for the wrong reason) merely because the facts are of a kind which might possibly be found differently on remitter. That is not, I think, the effect of what Beaumont J said in Santa Sabina, supra. If the facts have been found for an analysis based on Article 33 in a way which does not throw them into doubt, particularly because the correct question has been approached as a central and not peripheral matter, but bearing in mind the incorrect legal framework set, I am of the view that I should affirm the decision, even if a differently constituted Tribunal might find the facts differently because the factual question might be seen to be one about which minds could reasonably differ.

80                  As is perhaps plain from what I have already written, the correct question was asked – about the present capacity or ability of the applicant to enter Syria, because (wrongly) that was seen to answer the question as to whether he had a right(for subs 36(3)) to enter Syria. Thus, the focus of the enquiry was not just to the past but to a present capacity or ability.

81                  I should add that no challenge (formal or otherwise) was made to the view expressed by von Doussa J in Thiyagarajah (agreed with by Moore and Sackville JJ), supra at pp 563-65 that there is no difference between the standard of safety required by Articles 33 and 1A(2). As a consequence no doubt of this, there was no argument put to me to the effect that the standard of safety called for by Article 33 is higher than that referred to in subs 36(4) and (5). The focus of attack on the decision was on the question of re-entry and rights and capacity in relation thereto.

82                  For these reasons the application should be dismissed.

83                  During the course of the hearing, I raised with counsel a construction of subs 36(3) and an approach to the facts which had not been dealt with in submissions. In the course of argument, the respondent adopted this construction, which, if correct, would also lead inexorably to the application being dismissed.

84                  The approach was as follows: that upon being granted a permission or liberty to enter Syria, the applicant was given a right to enter and reside in Syria such that it could be said, for the reasons which I expressed in para [31] above, that the applicant had a right (by way of permission or liberty granted at the border) to enter and reside in Syria. Once within Syria, the applicant’s entitlement to reside in Syria was governed by, and found in, this permission or right which had been granted to him. By voluntarily leaving Syria and putting himself in a position where he no longer had a right to enter and reside in Syria (though retaining, as the Tribunal found, a capacity to bring about re-entry) the applicant could not be said to have taken all possible steps to avail himself of (that is, to have given himself the advantage of or to have made use of) the right which he had. This right was a composite right granted at the point of entry: the right to enter and reside in Syria.

85                  Counsel for the applicant put to me that I should reject this approach because, he said, subs 36(3) contemplated a right presently existing at the time of decision making. Some support for that approach comes, perhaps, from the use of the perfect tense “has not taken” rather than the simple past tense “did not take” or “has not taken or did not take” in subs 36(3). I think that this question of tense is reflective more of style than substance and that “has not taken” is wide enough to cover past completed failures as well as continuing failures.

86                  However, in the light of the speech of Senator Patterson and the text of Subdivision AK inserted into the Act at the same time and in particular s 91M referred to in para [22] above, I am of the view that the failure to take steps to avail oneself of the right to enter and reside somewhere requires that the right to enternot be availed of as well as its consequence – the right to reside. Here, the right given to the applicant to enter Syria was fully availed of – he entered and resided. His right to reside there, by the permission granted and continued by Syria, was voluntarily abandoned. On reflection, I do not think that that is or was a failure to take steps to avail himself of a right to enter and reside, but it was a failure to avail himself of a right to reside or to continue to reside.

87                  The difference is fine, but I think meaningful. The difference would become important if the applicant had left Syria with a right to re-enter and reside, but had allowed that right to lapse prior to the delegate or Tribunal dealing with his application. In those circumstances, subs 36(3) would, I think, apply, even though the failure was completed in the past, in the sense that it was lost before the date of consideration of the claim by the delegate of the Tribunal.

88                  For the reasons expressed above, the orders of the Court will be that the application be dismissed with costs.

 

 

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

 

 

Associate:

 

 

Dated: 3 August 2001

 

 

 

 

 

 

Counsel for the Applicant:	Mr J Gibson
Solicitor for the Applicant:	Armstrong Ross Solicitors
Counsel for the Respondent:	Ms M Maharaj with Ms E Reed
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	25 – 29 June 2001
Date of Judgment:	3 August 2001