FEDERAL COURT OF AUSTRALIA

Al Toubi v Minister for Immigration & Multicultural Affairs [2001] FCA 1381

MIGRATION ­– visa – protection visa – safe third country – well-founded fear of persecution in Iraq – applicant previously resident in Syria – whether Syria a safe third country – applicant without a passport – whether RRT failed to consider evidence that Syria would not accept non-Syrian returned from Australia – finding that Syria would deport Iraqi if guilty of a criminal offence or if a security risk – whether RRT bound to hold Syria not a safe third country – individual nature of test

Migration Act 1958 (Cth) ss 5(1), 36, 430(1)(c), 430(1)(d), 476(1)(a), 476(1)(e), 476(1)(g), Sch 1 Pt 6

Border Protection Legislation Amendment Act 1999 (Cth) Sch 1, item 70

Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 cited

Rajendran v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 526 cited

Minister for Immigration & Multicultural Affairs v Al-Sallal [1999] FCA 1332 cited

Al-Rahal v Minister for Immigration & Multicultural Affairs [2001] FCA 1141 cited

Minister for Immigration and Multicultural Affairs v Yasouie [2001] FCA 113 cited

Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 considered

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 considered

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (2000) 168 ALR 407 cited

SHAKIR AZIZ AL TOUBI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 102 of 2001

GRAY, HILL AND MOORE JJ

28 SEPTEMBER 2001

MELBOURNE (HEARD IN PERTH)

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed. 

2.      The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This appeal is from the judgment of a single judge of the Federal Court of Australia.  The judge dismissed an application by the appellant for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (“the Migration Act”) of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa.

2                     Section 36 of the Migration Act provides for a class of visas to be known as protection visas.  Subsection (2) provides:

“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.”

The term “Refugees Convention” is defined in s 5(1) as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.  The term “Refugees Protocol” is defined as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  The effect of the Refugees Convention, as amended, is to impose protection obligations in respect of a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Such a person is described as a refugee. 

3                     Article 1E of the Convention provides:

“This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”

4                     Article 33 of the Convention provides:

“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.”

5                     In consequence of these provisions, there has developed in Australia a body of law to the effect that, where a country other than the country of the claimant for refugee status, and other than Australia, would provide for that applicant effective protection, the person is not a person to whom Australia owes protection obligations.  See Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 562, Rajendran v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 526 at 529, Minister for Immigration & Multicultural Affairs v Al-Sallal [1999] FCA 1332 at [42], Al-Rahal v Minister for Immigration & Multicultural Affairs [2001] FCA 1141 at [93] and Minister for Immigration and Multicultural Affairs v Yasouie [2001] FCA 113.  Section 36(3), (4) and (5) of the Migration Act now contain provisions that may be relevant to these issues.  Although the Tribunal in the present case mentioned those provisions twice in its reasons for decision, the provisions themselves have no application because the appellant made his application for a protection visa before the provisions came into operation.  Item 70 in Sch 1 to the Border Protection Legislation Amendment Act 1999 (Cth) provides that amendments made to the Migration Act Pt 6 of Sch 1 apply to applications, or purported applications, for a visa made after the commencement of item 70.  The amendments to s 36 of the Migration Act are found in item 65, which is in Pt 6.  Item 70 commenced on 16 December 1999 by proclamation, in accordance with s 2(6) of the Border Protection Legislation Amendment Act 1999 (Cth).

The Tribunal’s findings

6                     The Tribunal accepted that, if the appellant were to return to Iraq now or in the reasonably foreseeable future, there was a real chance that he could face harm amounting to persecution and that it would be for a political opinion, even if that opinion was imputed rather than actual.  The appellant therefore had a well-founded fear of such persecution in his country of origin and was entitled to protection, unless he was able to secure effective protection in a safe third country.

7                     Because the appellant had spent six years living in Iran and three years living in Syria, the Tribunal proceeded to consider:

“his situation in those countries and, whether or not he could return, not face persecution in those countries and not be refouled to Iraq where I have found he does have a well-founded fear of persecution for a Convention reason.”

8                     The Tribunal found that, if the appellant had remained in Iran, he would have continued to enjoy protection from any persecution he feared in Iraq.  His choice to leave Iran, however, meant that he would have difficulties in returning there.  Acting on information from the Department of Foreign Affairs and Trade, the Tribunal found that the appellant could not return to Iran from Australia.

9                     In relation to the appellant’s prospects of effective protection in Syria, the Tribunal made a number of findings.  The learned judge at first instance summarised those findings as follows:

“(a)     The applicant and his family entered Syria legally, and the applicant
also left Syria legally when he flew from Syria to Jordan.

(b)       The independent material before the Tribunal stated that Arabs may
enter and live in Syria indefinitely, and since this is part of government policy it is not accurate to say that a non-Syrian Arab is living in the country illegally if they have entered openly and with clearance and approval.

(c)        While there was an exception in the case of Iraqis, that exception was
for security reasons and the only criteria necessary for Iraqi Arabs is that they be sponsored or vouched for by a friend or relative or Iraqi opposition party.  The applicant passed that scrutiny and was able to remain in Syria for the three years he was there.

(d)       The applicant’s brother and his family had also been able to live there
in the same street and his wife and their children continue to live in Syria.

(e)        The Syrian authorities have no security concerns in regard to the
applicant or the members of his family who have lived there at various times and continue to live there.

(f)        Arabs can remain in Syria indefinitely and therefore are not at risk of
refoulement, and that this is the case for the applicant and his family as Arabs.

(g)       The exception to this situation is where a person has committed a
crime or is a security risk.  As the applicant had lived in Syria for three consecutive years without being of concern for either of those reasons, any chance that he would on return was both remote and insubstantial, and therefore there was no real chance that the applicant would face deportation [refoulement] for either reason.

(h)       The applicant’s wife continues to live in Syria legally and is in a
position to ‘sponsor’ the applicant to return.

(i)        The applicant’s claim that his passport was false was not accepted. 
There was no reason that he could not have been granted a passport in Iraq since he had not been accused of or found to be a political dissident.

(j)        The applicant’s belated claim to have told Syrian authorities that his
passport was false was not accepted.

(k)       By the applicant’s own account the passport accurately identified him
as himself, and materials established that the Syrian authorities do not require Arabs to have passports to enter the country.

(l)        The concerns of the Syrian authorities are security concerns, and since
the applicant openly entered the country in his own name, lived there for three years and left using an exit visa through an official border control point, the international airport, he has satisfied the Syrian authorities that he does not pose a security risk and has observed all of the conditions to enter and exit the country legally.

(m)      There is no basis for a claim by him that Iraqi agents in Syria made it
unsafe for an Iraqi in his situation to live there.

(n)       The applicant could be sponsored into Syria by his wife, satisfactorily
identify himself to the Syrian authorities and could return to Syria.  There was no real chance he could be refouled from Syria or suffer persecution there so that he has effective protection in that country.”

10                  As a result of the finding that the appellant had effective protection in Syria from the harm that he feared in Iraq, the Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia has protection obligations.  He did not therefore satisfy the criterion in s 36(2) of the Migration Act.

The application for judicial review

11                  When the matter came before the learned judge at first instance, it was on the basis of an amended application for an order of review, filed on 21 August 2000.  That amended application relied on three of the grounds specified in s 476(1) of the Migration Act as grounds upon which an application may be made to the Court for review of a judicially-reviewable decision.  The grounds relied on appear to be those found in pars (a), (e) and (g).  It is convenient to set out the provisions of those paragraphs:

“(1)     Subject to subsection (2), application may be made for review by
            the Federal Court of a judicially-reviewable decision on any one or
            more of the following grounds:

            (a)        that procedures that were required by this Act or the
                        regulations to be observed in connection with the making of the
                        decision were not observed;

            …

            (e)        that the decision involved an error of law, being an error
                        involving an incorrect interpretation of the applicable law or
                        an incorrect application of the law to the facts as found by the
                        person who made the decision, whether or not the error
                        appears on the record of the decision;

            …

            (g)        that there was no evidence or other material to justify the
                        making of the decision.”

12                  It is also relevant to note s 476(4), which is in the following terms:

“(4)     The ground specified in paragraph (1)(g) is not to be taken to have
            been made out unless:

            (a)        the person who made the decision was required by law to
                        reach that decision only if a particular matter was established,
                        and there was no evidence or other material (including facts of
                        which the person was entitled to take notice) from which the

                        person could reasonably be satisfied that the matter was
                        established; or

            (b)        the person who made the decision based the decision on the
                        existence of a particular fact, and that fact did not exist.”

13                  The failure to follow procedures alleged as supporting the ground of review in s 476(1)(a) was an alleged failure by the Tribunal to comply with s 430(1)(c) and (d) of the Migration Act.  Those provisions require that a decision of the Tribunal must be in writing, setting out the findings on any material questions of fact and referring to the evidence or any other material on which the findings of fact were based.  The appellant sought to contend that the Tribunal had failed to make (and therefore to set out) a finding of fact, and to refer to evidence, about an issue that was said to be crucial.  That issue was whether it was possible for the appellant to return to Syria.  That issue arose in the following circumstances.

14                  Together with a letter dated 20 April 2000, the deputy registrar of the Tribunal forwarded to the appellant documents containing information from the Department of Foreign Affairs and Trade, the United Nations High Commissioner for Refugees and the Syrian authorities, concerning the treatment of citizens of Iraq by Syria.  The letter invited comment on the material.  Solicitors acting for the appellant forwarded such comments in a letter to the Tribunal dated 26 April 2000.  Among the material in this letter was a reference to an earlier decision of the Tribunal in another case about whether it was possible for the applicant in that case to have access to effective protection in Syria.  The letter quoted a passage from the Tribunal’s reasons for decision in that case.  The passage quoted contained the following sentence:

“Of particular relevance is the independent evidence that suggests that Syria would certainly not accept repatriations (sic) into their countries (sic) of people who were not their own nationals, and that there have been continuing reports of forced repatriation of Iraqi refugees and asylum seekers.”

On the basis of the information contained in the letter, the appellant’s solicitors submitted that he would be unable to obtain meaningful protection in Syria.

15                  In the amended application, the appellant sought to raise the proposition that the Tribunal had failed to observe the procedures required by the Migration Act, in that it had failed to make a finding of fact in relation to this item of evidence, ie a finding on the question whether the appellant would be able to enter Syria as an Iraqi returning from Australia.  The ground relied on by the appellant that the Tribunal had made an error of law similarly raised the question whether it was open to the Tribunal to find that effective protection existed in Syria without considering whether Syria would accept the return of the appellant from Australia.  The same question was raised by the “no evidence” ground, on the assumption that the Tribunal had made a finding that the appellant could be returned by the Australian authorities to Syria.  In addition, under the “no evidence” ground, the appellant referred to the Tribunal’s finding that his wife, a citizen of Iran, could sponsor him to enter Syria.

The judgment at first instance

16                  Before the learned primary judge, the appellant does not appear to have relied on the “no evidence” ground.  His Honour dealt with the ground that raised a failure to comply with s 430 of the Migration Act.  He held that the question of fact which the Tribunal was required to decide was whether the appellant had available to him effective protection in Syria and that the Tribunal had reached a view on that and set out its findings on the material question.  In his Honour’s view, the Tribunal was not obliged to address the one piece of contrary evidence that Syria would not accept repatriation of people who were not Syrian nationals and that there had been continuing reports of forced repatriation of Iraqi refugees and asylum seekers.  His Honour distinguished Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578.  In that case, a Full Court held that the Tribunal had failed to observe a procedure required by the Migration Act to be observed in connection with the making of its decision.  The Full Court said at [40]:

“The issue which, in our judgment, the Tribunal has failed to address is how Mr Sameh can reasonably travel to Iraq to access the effective protection which the Tribunal found was there available to him.  It is not sufficient for the Tribunal to have found that Iraq would have admitted Mr Sameh within its boundaries if he is not reasonably able to reach those boundaries.  The Tribunal found that he would be admitted to Iraq, but did not address how he might reasonably travel to those boundaries.  In the particular circumstances of Mr Sameh’s claim, that was a matter which the Tribunal was obliged to address.”

17                  Further, at [52], the Full Court said:

“as a matter of law, the Tribunal was obliged to consider whether Mr Sameh would be accepted into Jordan if he were returned there by Australia, so that he may enjoy the effective protection available to him once he is in Jordan: Koe [(1997) 74 FCR 508].  In our judgment, the Tribunal has not addressed that fact.  The Tribunal might have been expected to determine the basis upon which Mr Sameh would now be admitted to Jordan.  That might involve a decision as to whether he holds a passport which would be accepted by the Jordanian authorities.  Such matters are for the Tribunal to address.  It has not apparently done so.”

18                  His Honour distinguished Sameh on the basis that:

“Here there was not a live issue on how the applicant was actually going to return to Syria, so that the Tribunal was not obliged to make findings on it.”

19                  His Honour also dealt with the ground that raised error of law, which was characterised as the application of an incorrect test in determining whether Syria was a safe third country.  The appellant contended that the Tribunal could not have found Syria to be a safe third country, having regard to evidence that the Syrian authorities did not recognise refugees either by law or in practice and that Syria refouled Iraqis who committed offences irrespective of the seriousness of such offences.  His Honour held that the Tribunal’s finding that the appellant had available to him effective protection in Syria, for which there was evidence and on which the Tribunal made findings, disposed of the issue.  The Tribunal was not required to deal with every item of evidence it rejected, or which was inconsistent with the finding it was entitled to make.  His Honour also held that the possibility of deportation from Syria for the commission of a minor criminal offence is not within the ambit of the Convention reasons prohibiting refoulement, because criminal offences involve violation of laws of general application.  In addition, there was no evidence that the appellant was likely to embark on criminal conduct.  Finally, his Honour held that the appellant’s intention invited the Court to engage in merits review.

20                  His Honour therefore dismissed the appellant’s application for judicial review and ordered the appellant to pay the respondent’s costs of the application.  It is from that judgment that the present appeal is brought.

The appeal

21                  In its original form, the appellant’s notice of appeal raised the grounds in s 476(1)(a) and (e) of the Migration Act.  It was contended that the learned primary judge erred in law in determining that the Tribunal had not failed to observe the procedures required by s 430.  The particulars to this ground raise the same matters as had been raised before his Honour.

22                  It was also contended that his Honour had erred in law in two respects.  The first was in determining that the Tribunal had not erred in law in applying the test as to the criteria for a safe third country.  Under this ground of appeal, the appellant again raised the issues of whether the Tribunal should have made a finding as to whether Syria would accept the return of the appellant from Australia and as to whether the Tribunal could have found Syria to be a safe third country if there was a substantial risk of refoulement to Iraq for any offence however trivial.  The second error of law raised was that his Honour erred in law in finding that Australia did not owe protection obligations to a person who was at risk of being refouled for a trivial offence.

23                  Following the filing of the notice of appeal, the High Court of Australia delivered its judgment in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1.  In that judgment, the High Court made it clear that a failure by the Tribunal to comply with the obligations set out in s 430 of the Migration Act, including the obligations to set out findings on any material questions of fact and to refer to the evidence or other material on which the findings of fact were based, could not be relied on to support the ground specified in s 476(1)(a).  In consequence, at the hearing of the appeal, counsel for the appellant sought to amend the notice of appeal.  The Court gave him leave to make the amendments sought.  The grounds of appeal in the amended notice of appeal are as follows:

“1.       His Honour erred in failing to determine that the Tribunal did not
            have jurisdiction to make it (sic) decision or the decision was not
            authorised by the Migration Act, alternatively the Tribunal had erred
            in law, in determining that Syria was a safe third country without
            asking the central question as to whether there was any practical
            means of the Appellant returning to Syria, except in circumstances of
            a return by the Australian Government, which would, on the material
            before the Tribunal, involve rejection by the Syrian Government.
            Alternatively the Tribunal had failed to have regard to the relevant
            consideration namely the practical difficulty of the Appellant being
            able to return to Syria in the circumstances outlined above.

PARTICULARS

            a)         The Tribunal accepted material that the Syria (sic)
            Government would admit Iraqis who arrived at its borders if
            sponsored by a family member or Iraqi opposition party.

            b)         Whilst the Tribunal made no finding, it was implicit that
                        the Tribunal accepted that the Appellant no longer had
                        an Iraqi passport on which to travel.  Further the Tribunal
                        had found the Appellant to be a refugee from Iraq.

            c)         Whilst the Tribunal made no finding, the material before
                        the Tribunal was to the effect that the Syrian Government
                        would not accept Iraqi returnees from Australia, although
                        it might consider long term former residents, particularly
                        those who had Syrian national wives still residing in
                        Syria.

            d)         There was no material before the Tribunal as to how the
                        Appellant might arrive in Syria or at Syria’s border,
                        except by being returned by Australia.

2.         His Honour erred in law in determining that the Tribunal had not
            erred in law in applying the test as to the criteria for a safe third
            country.

PARTICULARS

            a)         Syria could not be considered a safe third country without
                        evidence that such country would accept the return of the
                        Appellant from Australia.  In all the circumstances, His
                        Honour should have found that the Tribunal was bound to
                        make enquiries with the Syrian authorities.

            b)         Syria could not be considered a safe third country in
                        circumstances where there was a substantial risk of
                        refoulement to Iraq for any offence however trivial.

3.         His Honour erred in law finding (sic) that Australia did not owe
protection obligations to a refugee who was at risk of being refouled
for a non convention related trivial offence by “the safe third country”
to the Refugee’s country of origin, where there was a well founded fear
of persecution.”

24                  The ground numbered 1 is a new ground, in substitution for the former ground relying on s 430.  In order to regularise the proceeding, the Court also required counsel for the appellant to file an amended application for an order of review.  Such a document was filed, containing a ground that is in the same terms as ground one in the amended notice of appeal.

25                  In essence, there were two matters argued on the appeal.  Both concerned the question whether Syria could be regarded as a safe third country so that the appellant could reasonably avail himself of its protection.  The first matter concerned the appellant’s suggestion that the Tribunal should have dealt, and failed to deal, with the issue of how he was to return to Syria from Australia, and whether he would be accepted.  The second issue was whether Syria could properly be regarded as a safe third country if there was a risk that the appellant would be refouled to Iraq if he should commit an offence of any kind. 

The return to Syria

26                  Although the Tribunal did not make a specific finding to the effect that the appellant no longer has a passport, it is implicit in the Tribunal’s findings that this is so.  There was evidence before the Tribunal that the appellant had had a false Iraqi passport, which he had thrown into the ocean before the boat on which he came to Australia arrived.  In its reasons for decision, the Tribunal made a finding that the passport had been a genuine one.  The Tribunal consistently referred to the passport in the past tense.  Counsel for the appellant relied on the fact that the appellant has no passport in support of the proposition that the only way in which the appellant could return to Syria was under compulsion from the Australian Government, with some form of travel document supplied by the Australian Government.  This, counsel said, was sufficient to make relevant to the Tribunal’s determination the evidence that Syria would not accept “repatriations” of people who were not Syrian nationals, on which the appellant had relied in his solicitor’s letter of 26 April 2000.

27                  The Tribunal also had before it information, supplied by the United Nations High Commissioner for Refugees in December 1999, relating to the possible protection in Syria of Iraqi nationals.  This information was to the effect that, according to the ideology of the Syrian Government, all nationals of Arab States can enter Syria at any time without entry visa requirements, with the exception of Iraqis and Somalis.  Iraqis intending to enter Syria should be sponsored either by a relative or friend residing in Syria or by one of the Iraqi opposition parties operating in Syria.  In either case, it was necessary for security clearance to be obtained in order to be communicated to the relevant Syrian Embassy abroad, the airport, or the immigration/security office at the official entry points from Iraq, Jordan or Turkey.

28                  This evidence underlay the Tribunal’s findings that Arabs may enter and live in Syria indefinitely and that the exception in the case of Iraqis was overcome in the case of sponsorship by a friend or relative or an Iraqi opposition party.  The Tribunal also found that the Syrian authorities do not require Arabs to have passports in order to enter Syria. 

29                  The appellant’s contention that the Tribunal failed to consider how the appellant could be returned to Syria is therefore unsustainable.  The Tribunal did find that the appellant could go back to Syria, even without a passport, as long as he had sponsorship from his wife, who was living in Syria.  In so finding, the Tribunal must be taken to have rejected the proposition advanced on behalf of the appellant in the letter of 26 April 2000 that Syria would not accept “repatriations” of people who were not Syrian nationals.  It was open to the Tribunal to reject this evidence without referring specifically to it.  See Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (2000) 168 ALR 407 at [65] – [67].

30                  Sameh can be distinguished from the present case.  It was decided before Yusuf was decided by the High Court.  Accordingly, the Full Court in Sameh reached the conclusion that, in failing to consider whether Mr Sameh would be accepted into Jordan if he were returned there by Australia, the Tribunal had failed to observe a procedure required by the Act to be observed in connection with the making of the decision.  The Full Court therefore held that the ground specified in s 476(1)(a) of the Migration Act had been established.  This reasoning would not be open since the High Court’s judgment in Yusuf.  It may be that, where a question arose as to the effectiveness of protection in a third country, the Tribunal would make an error of law, of the kind identified in Yusuf at [75], if it failed to consider whether the particular applicant for protection was able to gain entry to the country concerned.  In the present case, however, the Tribunal did consider that issue.  It determined that the appellant, as an Arab, would be able to enter Syria if he obtained sponsorship from his wife.  It determined that he would not need a passport in order to gain entry.  Its conclusions in these respects do not disclose any error of law on the part of the Tribunal.

Possible refoulement

31                  The argument on behalf of the appellant with respect to possible refoulement from Syria to Iraq depended on the finding of the Tribunal to the effect that Syrian authorities would deport an Iraqi to Iraq if the person concerned committed a crime or became a security risk.  Counsel for the appellant contended that, in those circumstances, the Tribunal was wrong in law to consider that Syria answered the test of a safe third country.  Alternatively, he argued that the Tribunal had failed to apply the proper test for determining whether Australia owes protection obligations to a person, namely whether there is a “real chance” that the person concerned would face persecution in his or her own country if refused protection in Australia.

32                  The test for determining whether a particular country is a safe third country is necessarily a test related to the individual circumstances of the person seeking protection in Australia.  The issue is whether the third country concerned will be safe for that personor whether there is a real chance that third country will refoule the person to a country where he or she would be at risk of persecution for a Convention reason. For a recent comprehensive discussion of safe third countries, see Al-Rahal v Minister for Immigration & Multicultural Affairs [2001] FCA 1141.  In the present case, the Tribunal addressed itself to that question.  It found that the Syrian authorities have no security concerns in regard to the appellant or the members of his family who have lived in Syria at various times and continue to live there.  It found that the appellant had lived in Syria for three consecutive years without being of concern for either of the reasons of commission of a criminal offence or being a security risk.  Accordingly, it found that any chance that he would commit a criminal offence or become a security risk on return was both remote and insubstantial.  There was therefore no real chance that the appellant would face deportation for either reason.  In other words, the Tribunal found that the individual circumstances of the appellant were such that he was unlikely to commit an offence, or to become a security risk, and to face deportation from Syria to Iraq for either of those reasons.  Syria was therefore a safe country for him.  It must also be said that there was no evidence before the Tribunal that the appellant was likely to commit any criminal offence.  It was therefore open to the Tribunal to find that any chance that he would do so was both remote and insubstantial. 

33                  In concluding that there was no real chance that the appellant would be deported to Iraq from Syria for committing a criminal offence or becoming a security risk, the Tribunal made no error of law.

Conclusion

34                  The learned primary judge therefore correctly dismissed the application of the appellant for judicial review.  His Honour was correct in finding that the Tribunal made no error of law in dealing with the appellant’s case.  For these reasons, the appeal must be dismissed.  The appellant should be ordered to pay the respondent’s costs of the appeal.

Associate:

Dated:              28 September 2001