FEDERAL COURT OF AUSTRALIA

Baker v Minister for Immigration & Multicultural Affairs [2001] FCA 1605

Migration Act 1958 (Cth) s 476

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

Minister for Immigration & Multicultural Affairs v Quiader [2001] FCA 1458 distinguished

KHALID AHMAD BAKER v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 240 of 2001

RD NICHOLSON J

14 NOVEMBER 2001

PERTH

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     The applicant applies to review the decision of the Refugee Review Tribunal (“the Tribunal”) confirming the decision of the respondent through his delegate not to grant the applicant a protection visa.  The application is made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).

2                     The applicant is a stateless Palestinian who has resided in Syria since birth.  At the time of his appearance before the Tribunal he was aged 25 years and single.  His parents were both born in Palestine.  He undertook his secondary school education in Syria and last worked there as a self-employed businessman selling vegetables.  He completed a period of compulsory military service in 1999.  He arrived in Australia without a visa in August 2000.  He made his application for a protection (class XA) visa on 7 March 2001. 

Relevant provisions

3                     Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”  The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967.  The expression “Convention” will be used to mean the Convention as amended by the Protocol.  The same criterion appears in Sch 2 of the Migration Regulations in which item 785 and 866 both include the same criterion.

4                     Article 1a(2) of the Convention defines a “refugee” to be any person who:

“…owing to a 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”.

5                     The reasons specified in Article 1a(2) are known as Convention reasons.  The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Article 33 of the Convention.

Applicant’s claims

6                     The Tribunal set out the principal claims made by the applicant as follows:

“(a)     In 1999 a school friend asked whether the applicant would transport some weapons.

(b)             Although he did not transport the weapons, in February 2000 the intelligence service organised raids on several houses including his own.  His father was taken into custody and detained for two months.

(c)             His friends were arrested in February 2000 on charges of membership of Al-Tahrir (The Liberation Party).

(d)             The authorities interrogated his father about the applicant’s association with The Liberation Party.  The applicant therefore faces persecution if he returns to Syria.

(e)             The applicant held travel documents issued by the Syrian authorities to Palestinians and through the help of a people smuggler and the payment of bribes he was able to obtain an exit visa and flee Syria.”

Tribunal’s findings

7                     The Tribunal’s principal findings as set out by it were as follows:

“(a)     It was implausible that the applicant would be prevailed upon to assist with the carrying of weapons in the absence of establishing some political commitment by him to the task at hand.  The claim was fabricated.

(b)             The applicant was able to pass all airport checks with his travel documentation.  The authorities had ample opportunity to take action against the applicant if they wanted to do so.

(c)             The implausibility of the claim about the request to support the political aims of his friends and his legal departure from Syria without apprehension led the Tribunal to find as fabricated the claim of imprisonment of his father.

(d)             The Tribunal did not accept the applicant evaded the authorities or departed Syria only because of payment of bribes.

(e)             The Tribunal was not satisfied the applicant’s friends had been arrested for political reasons.

(f)              Based on country information, UNRWA continues to provide comprehensive services for those registered with it.  Relations between the Syrian authorities and Palestinian refugees are generally positive and although the applicant does not reside in an UN controlled area, there is no information to indicate Palestinians generally face a real chance of persecution at the hands of Syrian authorities.

(g)             The applicant himself does not face a real chance of persecution in the foreseeable future by reason of his political opinions, by being a member of a particular social group of stateless Palestinians in Syria or for any other convention reason.

(h)             The applicant has not become a refugee sur place by reason of having applied to be declared a refugee in Australia.

(i)               The Tribunal concluded that, in view of the applicant’s actual profile and bearing in mind his legal departure and country information, the applicant would not attract harm even if his application for asylum were to become known to Syrian authorities.

The Tribunal was therefore not satisfied the applicant was a refugee and affirmed the decision not to grant a protection visa.”

Applicant’s contentions

8                     The applicant appeared unrepresented.  He did not make written submissions.

9                     With reference to finding (f) of the Tribunal and the reference to UNRWA, the applicant submitted he had advised on his first interview that he was not registered with UNRWA.  He considers that the Tribunal has refused his application because of its understanding that he did have the protection of UNRWA.  Furthermore, he said that other Palestinians who had received protection visas in Australia had received protection from UNRWA so that such protection was not a reason for exclusion. 

10                  Additionally, he said that the Palestinian government had told him that it was aware of all the persecution which he and others faced at the hands of the Syrian government.  So it was because the Palestinian government saw that he and others were at an impasse and could not go back to Syria that they issued them Palestinian passports.  His wish was to be assisted to go back to Palestine. 

11                  The Tribunal had not believed that he had left Syria only because he paid bribes.  However, in his view the Tribunal knew full well that bribes are paid at all levels in Syria. 

Respondent’s contentions

12                  The respondent submits that the decision of the Tribunal was not attended by any error which would give rise to judicial review under the Act. 

13                  Furthermore, the respondent submits that the decision of the Tribunal was based on its findings of fact.  It is said that the merits of the decision were for the Tribunal and not the Court:  Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56].

14                  Additionally, it is submitted that the reference in the reasons of the Tribunal to UNRWA was not by way of a principal finding and the reference did not form part of the decision making process which enabled the Tribunal to reach its decision.  The reality, it is submitted, is that the Tribunal did not accept the factual claims made by the applicant.

15                  Counsel for the respondent brought to the attention of the Court that a decision involving a stateless Palestinian was then reserved for decision.  The reasons for that decision have since been published in Minister for Immigration & Multicultural Affairs v Quiader [2001] FCA 1458.  French J there considered the provisions and the effect of Article 1(D) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the 1967 Protocol (together described as “the Convention”) which reads:

“This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.”

French J held that Article 1(D) does not apply to exclude from the protection of the Convention a Palestinian entitled to protection and assistance from UNRWA who is nevertheless at risk of persecution if returned to his home region notwithstanding that it is within the territorial competence of UNRWA.  In his opinion the Article should be read, having regard to its historical context, as referring to those who are or may be regarded, in a generic sense, as refugees vis a vis Israel.  He found there was nothing in the travaux preparatoires, discussed by the leading text writers, nor in the historical background, to support the view that the exclusion would extend to Palestinians who were at risk of persecution for a Convention reason if returned to their home region, albeit it was a region within the territorial competence of UNRWA.

16                  In further submissions the respondent contended that the decision in Quiader was readily distinguishable from the applicant’s case.  In Quiader the Tribunal decided the applicant faced a real chance of persecution if he were returned to Syria as a stateless Palestinian who had previously suffered persecution in Syria.  The crucial distinction relied upon by the respondent is that in the present case the Tribunal found as a fact that the applicant did not face any well-founded fear of persecution if returned to Syria.

Reasoning

17                  In my view the submissions for the respondent are correct.  Here the Tribunal found as a matter of fact that the applicant did not face any well-founded fear of persecution if returned to Syria.  The submissions made by the applicant, as an unrepresented lay person, address issues of fact going to the merits.  They lie beyond the competence of this Court to consider.  Because the findings of fact of the Tribunal are not able to be set aside for any error of law, there is no basis within the jurisdiction of this Court on which the decision of the Tribunal can be reviewed. 

Conclusion

18                  For these reasons the application should be dismissed.

Associate:

Dated:              14 November 2001