FEDERAL COURT OF AUSTRALIA

V900/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1020

V900/00A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V900 of 2000

ALLSOP J

SYDNEY

3 AUGUST 2001

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.

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 24 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 29 October 1999 without a valid entry permit.  He was placed in immigration detention, where he remains.  On 7 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 in the Tribunal by application made on 26 July 2000.  On 13 September 2000 a hearing was held before the Tribunal.  At the hearing the applicant gave evidence.

6                     On 24 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.

7                     This matter was heard in Adelaide between 25 and 29 June 2001 together with a number of other matters, all involving nationals of Iraq who had been in Syria for various periods of time.  Common legal issues arise in the applications.  There are some slight variations in arguments, but the determining legal propositions are contained in my reasons in V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018. I have set out in V856/00A my views on these common legal issues, being the proper construction of subs 36(3) of the Act, the continuing relevance of Article 33 and its consequence for an analysis of whether protection obligations exist for the purposes of subs 36(2) of the Act and the question of relief where error on the part of the Tribunal has been demonstrated.  These reasons should be read in conjunction with my views expressed in V856/00A, supra.

8                     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 made, though it will be necessary to refer to the context of the fact finding for reasons explained in V856/00A, supra.

9                      The Tribunal found that the applicant had in 1991 left Iraq for Iran with members of his family.  His father had fled from the Iraqi authorities to Iran in the 1980’s.  The family had been harassed after this.  The Tribunal accepted as plausible and consistent with independent material before it the applicant’s claim of being at risk of persecution in Iraq by reason, amongst other things, of his family having a political profile adverse to the incumbent Iraqi regime.  The decision not to grant him a protection visa was based on the protection available to him in Syria.

10                  The Tribunal noted that it had considered the applicant’s situation in relation to Iran, where he had stayed for six months in 1991-1992.  It expressed a finding, of no present significance, that the applicant could have remained in Iran with his family and would have been safe there, and that he had left Iran for reasons other than for protection, travelling to Syria via northern Iraq in 1991 - 1992.  He had been in Syria for seven years.

11                  In addition to the consideration given to the applicant’s claims and situation in relation to Iraq and Iran the Tribunal said:

I have further considered the Applicant’s entry, situation in and potential return to Syria where he spent seven years before entering Australia.

Although Syria is not his country of nationality, nor could it be regarded as a country of former habitual residence for the purpose of the Convention it must be considered in regard to whether or not the Applicant had protection in Syria from any harm he faced in Iraq and whether or not he could return, remain and be free from persecution in Syria.

12                  The Tribunal found that the applicant had originally entered Syria legally and was not unlawfully smuggled in as had been claimed.  It found that at the time of his entry, Syria was allowing entry to holders of Iraqi identification documents who obtained authorisation or clearance by being sponsored from within Syria by an Iraqi political group.  It found that the applicant was (and is now) the holder of a valid Iraqi identity document such as would, at the time, have allowed him “to enter and be recognised legitimately” and that his father and relatives were members of an Iraqi opposition party.

13                  The Tribunal found that the applicant’s status in Syria was a legitimate one: he had been able to remain there for seven years and to register and study at a Syrian university and had obtained student identification documents and a Syrian identity document and, since leaving, a police clearance certificate.  He had no criminal record in Syria.  He was fully integrated and accepted into Syrian society.  He did not leave university for reason of any fear of harm or persecution.

14                  The Tribunal rejected the applicant’s claim that he had left Syria illegally, since he was there legally, and it was a simple procedure to obtain a required exit visa; also, the fact that the applicant had obtained by application from Australia a Syrian police clearance certificate was seen to support this finding.

15                  The Tribunal then found as follows:

The Applicant’s Ability to Return to Syria

The Applicant has claimed that, in the seven years he was in Syria he made no friends or contacts.

I do not accept that to be case because it is implausible.  He claimed that he lived in student accommodation (University Hall) when he was studying, although he had the option to continue to live in the accommodation he already had.  This is not the action of someone who does not want to be recognised or to remain without friends.  I find that he has had a long and significant connection with Syria, that he has a Syrian ID, a clear record and that he entered and exited the country legitimately.

As stated in the independent material before me, I accept that he would need to be sponsored to return to Syria but find that his family’s membership of an Iraqi opposition group plus the contacts I find he has in Syria are such that he would have no difficulty in arranging a sponsorship.

I have turned my attention to the advice from the Applicant’s adviser which he claims he received from the Honorary Syrian Consul.  However, I note that was in respect to deportees rather than voluntary returnees.  I prefer and accept the advice in the material provided to the Applicant at the hearing to the effect that Iraqis may enter Syria if they are sponsored by a relative, friend or Iraqi opposition group in Syria

I find that he has no impediment in regard to his security clearance and could return to the country he spent seven years in before departing and travelling to Australia.

16                  The Tribunal considered the claim that due to normalisation of Syrian – Iraqi relations, and to the operation in Syria of Iraqi government agents, Iraqi nationals such as the applicant would be at risk there.  Referring to and accepting country information to the effect that forced return to Iraq of Iraqis in Syria was most unlikely, the Tribunal found that there was no reason to believe the Applicant would be refouled to Iraq since he had spent seven years legitimately there without risk of refoulement and, given his right to move freely, study and reside indefinitely in Syria, he would not face a real chance of persecution in Syria.  The Tribunal concluded by saying:

This being the case, I am satisfied that Australia does not have protection obligations to the Applicant as a non-citizen who has not taken all possible steps to avail himself of a right to enter and reside in Syria where, although he is a non-citizen, as an Arab, [he] may enter and reside for an indefinite period safe from any Convention persecution he may face in Iraq. [emphasis added]    

17                  The Tribunal referred to its task as one under subs 36(3).  It did not separately identify a task under Article 33 and subs 36(2).  However, as part of that task under subs 36(3) the Tribunal squarely dealt with the applicant’s ability or capacity to return to Syria, where he had spent seven years.  It was found quite clearly that he had entered Syria legally.  If found that he had become fully integrated and accepted into Syrian society.  It found that he left Syria legally.  If found that he had made ample friends and contacts in Syria.  It found that his family had membership of an Iraqi opposition group.  It found that the necessary sponsorship for re-entry was available through family or other contacts.  The Tribunal dealt with evidence put forward by the applicant that as a deportee he would not gain entry.  The Tribunal said what appears in para [15] above and found that he could gain entry.

18                  It was said by counsel for the applicant that the Tribunal had assumed sponsorship was available and had not made a finding about that.  I disagree.  It plainly found that it was available.

19                  For the reasons expressed in V856/00A, supra, I am of the view that the Tribunal has misconceived the meaning and so the applicability of subs 36(3).  However, I am of the view that the Tribunal nevertheless, as a central issue, engaged upon the correct enquiry: whether or not the applicant had the ability or capacity to effect his re-entry in Syria.  That was answered squarely in the affirmative.  No question arose of any unwillingness in the applicant to take steps to bring about this result.

20                  Based on the finding that he has the capacity to return to Syria, Australia would not be in breach of its obligations under Article 33 in effecting his return there and so the Tribunal was correct in its conclusion to that effect, based on the facts as found, though such facts were approached through the wrong legal framework.  For the same reasons which I expressed in para [79] of V856/00A, supra, these findings of fact, made for the enquiry undertaken, persuade me that I should affirm the decision under subs 481(1) of the Act, notwithstanding what I think was the error in misdirection in respect of the meaning of subs 36(3).

21                  For the above reasons the application should be dismissed with costs.

Associate:

Dated:              3 August 2001