FEDERAL COURT OF AUSTRALIA

V901/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1021

V901/00A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V901 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 31 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 20 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 15 June 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 15 June 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 20 June 2000.  On 9 August 2000 a hearing was held before the Tribunal.  At the hearing the applicant gave evidence.

6                     On 31 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.  I have set out in V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018 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 any 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                     Various findings of fact were made.  None, relevantly, is challenged.  The Tribunal found the applicant to have a well-founded fear of persecution in Iraq.  The question was whether he had protection in Syria so as to deny him a protection visa.  The context in which the fact finding was made can be seen from what the Tribunal said under “Summary of the Relevant Law” at page 3 of the decision:

While most applicants who meet this definition [Article 1A(2) of the Convention] will be entitled to a protection visa, those who have “effective protection” in [a] country other than Australia will not.  In cases where a protection visa application was lodged after 16 December 1999, Australia does not have protection obligations to applicants who have not taken all possible steps to avail themselves of a right to enter and reside in, whether temporarily or permanently, a country other than Australia, unless the applicant is at risk of persecution for a Convention reason in the country in which they have these residency rights, or they have a well-founded fear that the country in question will return them to another country in which they will be persecuted for one of the reasons in the Convention.

9                     Also, later in the decision in the section entitled “Findings and Reasons for Decision” the Tribunal said the following under the heading “Effective Protection in Syria” at p 16 of the decision:

As noted above, Australia does not have protection obligations to applicants who have not taken all possible steps to avail themselves of a right to enter and reside in a country where they are not at risk of persecution for a Convention reason and where they do not have a well-founded fear of being returned to a country in which they do face persecution for a Convention reason.  In [the applicant’s] case the matters to be addressed in relation to this issue are whether he has the right to enter and reside in Syria, whether he had taken all possible steps to avail himself of this right, whether he is at risk of persecution for a Convention reason in Syria and whether he has a well-founded fear of being returned to Iraq from Syria.

10                  It is tolerably clear from this, I think, that the Tribunal approached the issues concerned with “effective protection” by way of the legal framework of subs 36(3).  It is also clear that the Tribunal approached the matter from the perspective that the applicant had a right to enter Syria if he had a capacity to enter Syria.  As is clear from my reasons in V856/00A, supra, that view was misconceived.  However, that is not the end of the matter.  One needs to deal with an analysis based on Article 33.

11                  The Tribunal found that the applicant had a well-founded fear of persecution in Iraq.  It found that the applicant had entered Syria legally and had resided legally for twelve years from 1987.  It found he had left Syria legally and it found that he could now return to Syria and reside there.  His family have lived in Syria for thirteen years.  The applicant completed a university degree there.

12                  The Tribunal directed itself squarely to the applicant’s capacity to return.  It did so under the rubric of ‘right’ but, nevertheless, made clear findings about that capacity.  It said (at p 20 of the decision):

After considering all the available evidence, I find that [the applicant] has the right to return to Syria and that he can reside there indefinitely.  According to advice for DFAT, UNHCR and the Syrian Ministry for the Interior, Iraqis do not need a passport or a visa to enter Syria.  They will be granted entry to Syria provided they have sponsorship from a relative or an Iraqi opposition party, and can reside in Syria indefinitely provided they do not engage in criminal or violent activities.  Iraqi[s] who previously resided legally in Syria can return and take up residence again provided they did not leave the country illegally, they have strong links to Syria and they have a relative or [an Iraqi opposition party] in Syria who can sponsor them.  [The applicant] meets all of these criteria.  He lived in Syria [from] 1987 until 1999, he left the country legally and his father and other relatives continue to live in Syria and can sponsor his return.  He clearly has the right to return to Syria and to reside there.  He has clearly not taken all possible steps to avail himself of this right.

13                  The use of the word ‘right’ was one which could only truly be seen as referring to a capacity displaying, I think, error in construing subs 36(3): see V856/00A.

14                  The question of the applicant being unwilling to exercise his capacity to re-enter Syria did not arise.

15                  In my view, the findings are plain and central and were found in response to the asking of the right question, though in the wrong legal framework: see V856/00A, supra at para [79].  In these circumstances, although I am of the view that the Tribunal misconceived the meaning of subs 36(3), the decision should be affirmed and the application dismissed with costs.

Associate:

Dated:              3 August 2001