FEDERAL COURT OF AUSTRALIA

Kouraim v Minister for Immigration and Multicultural Affairs [2001] FCA 1824

MOHAMMAD KOURAIM v MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

W 330 of 2001

CARR J

17 DECEMBER 2001  

PERTH

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

INTRODUCTION

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 10 July 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant, who is a stateless Palestinian born in Syria, arrived in Australia on 23 August 2000.  On 20 February 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”).  On 2 May 2001 a delegate of the respondent refused to grant a protection visa and on 4 May 2001 the applicant applied for review of that decision. 

the applicant’s claims and the Tribunal’s decision

2                     The applicant's claims were, in summary, as follows: 

·          He could be persecuted because of his father.  His father had criticised Syria and had been detained for that as far back as 1967, had escaped from detention after a few months and had fled to Lebanon with a man named Zaroor who was a stalwart of Fatah, the Palestinian Liberation Organisation chairman Mr Yassar Arafat’s faction of the PLO. 

·          Because of his father, his mother had been detained and interrogated by the Syrian authorities when she used to travel back and forth to Syria in the 1980s (she used to go to Syria to have her children, and then return to Lebanon).

·          Eventually most of the family had settled permanently in Syria but his father had stayed in Lebanon with one or two of the applicant’s brothers.

·          His father had got into further trouble when he had been involved in an attack on a Syrian road block in the late 1980s in which at least one Syrian officer had been killed. 

·          He used to travel to Lebanon every year for several years until 1992 to visit his father. 

·          He believed that he had been refused entrance to university because of his father and the link with Zaroor.

·          The Syrians had failed to seize his father in Lebanon because he was in Saidan (Sidon) which was controlled by Arafat.

·          He had been interrogated, and detained due to a cousin named Ziad who had been arrested in 1980 for being in the Muslim Brotherhood.

·          His brother Khaled’s fighting role in Fatah in Lebanon in 1985 was part of the reason why the Syrian authorities had interrogated and detained him several times.

·          In October 1999 two other brothers had gone to Lebanon to look for his father and on their return had been arrested by the Syrian Mukhabarat (intelligence/security) and detained for 15 days. 

·          His brothers had gone to Lebanon at the same time as 15,000 other Palestinians, three hundred of whom had been arrested on return to Syria. 

·          There had been demonstrations in protest at these arrests in Aleppo, in Syria.  The applicant had been among those demonstrators arrested and had been in detention for three weeks. 

·          He would be persecuted on return to Syria and in the past had been detained, interrogated and mistreated over his individual political activities.  He had been in the “Palestinian Democractic Front” (which the Tribunal took to mean the Democratic Front for the Liberation of Palestine).

·          In 1998 he had been detained for about 4 months for having spray-painted graffiti on behalf of this group about the peace talks between Palestinian officials and Israel.

·          He had participated in political discussion groups and in an informal way tried to get others to join.  The group was led by Mr Nayef Hawatmeh.  The applicant claimed that he would be put in gaol for being in Hawatmeh’s party. 

·          In May 2000 he had heard through his employer (at a hotel) who had heard it from a friend in the security services, that he was being targeted by the Syrian State through allegedly being a member of the “Revolutionary Committees”.  Although he had no such involvement, he felt impelled to flee Syria shortly afterwards because he had many friends who were in that “party” with whom he used to meet all the time to share political views.  This, the applicant claimed, could have made the authorities believe that he too was in the “Revolutionary Committees”.

·          The leader of the “Revolutionary Committees” was Sabri Al Banna.

·          He had left Damascus in July 2000 after obtaining a passport with the help of his employer during the previous month.  The employer had paid a bribe to get the passport. 

·          At his first interview the applicant said that the passport was a valid Palestinian travel document issued by Syria.  A people smuggler had seen him through the security checks at Damascus airport.  He claimed that he would be persecuted partly for having left Syria “illegally”.

3                     I shall not attempt to summarise the Tribunal’s findings and reasons.  I set them out below in full.  I have added numbers to the paragraphs to facilitate the references which I make later in these reasons. 

“FINDINGS AND REASONS

1.  I accept that the applicant is a stateless Palestinian refugee born and with residency rights in Syria, registered by UNRWA.

2.  I find that there is an overall lack of credibility in the applicant's claims of persecution, and have dealt with these claims in sections.

Claims of persecution for family members' political records:

3.  The applicant's claims of harm stemming from his family's  -primarily his father's - political histories lack credibility.

4.  I find it implausible that the Syrian authorities would be targeting the applicant today over his father's alleged criticism of Syria and escape from detention in 1967. The applicant's evidence on this matter did not show a compelling reason why the Syrians would hold the father's actions of 1967 against his family.

5.  The fact that the father joined Fatah, the PLO Chairman Mr Yasser Arafat's PLO faction, does not in itself demonstrate that the Syrians would have targeted him, given independent evidence above that just being pro-Fatah or pro-Arafat does not lead to harm at Syrian hands. Given the Syrian leadership's current strong backing of the Arafat-based Palestinian Authority as noted on p.10, I find it quite implausible that the applicant would be persecuted simply for having a real or imputed pro-Arafat political view, and I am not satisfied on the independent evidence before me that he risked persecution for it in the past.

6.  I am not satisfied that the Syrian authorities would have been seeking, in the 1990s and beyond, to punish the family of a Palestinian fighter who had been involved in a random attack at a Syrian roadblock in Lebanon in the late 1980s. Violence by one side against another, and destruction on a huge scale, including such gross infamies as the massacres in the Palestinian camps of Sabra and Chatila and the car-bomb attacks on the French and American marines in Beirut, were all too common in Lebanon in those days, and it is not credible that the Syrians would be focusing on one small incident for years afterwards.

7.  If, for some reason, the applicant's father's alleged attack on a Syrian checkpoint in the late 1980s had so incensed the Syrians that they had wished to arrest the father, I consider that they would have arrested him in Lebanon long ago and dealt with him. Amnesty International has reported that scores of Palestinians have over past years been "arrested or abducted by Syrian military forces operating in Lebanon and transferred to Syria outside any legal framework. Others were arrested or abducted by Lebanese or Palestinian militias during the war in Lebanon and handed over to the Syrian authorities” (Syria/Lebanon: Prisoners' Release Should Be a Step Towards Uncovering The Whole Truth, Amnesty International, 12/12/2000 AI Index MDE 24/033/2000 - News Service No.234, ISYS). I find that the Syrian authorities would have had little difficulty capturing a wanted person such as the applicant claims his father was, given their considerable resources in Lebanon. There were about 40,000 Syrian troops in Lebanon at the end of the civil war in 1991, and there are still more than 20,000 troops there today (see US State Department reports on Lebanon over the past 10 years). The Lebanese authorities protect Syria's interests and assist in apprehending people of concern to the Syrian authorities (Lebanese Army Arrests Anti-Syrian Christians, Reuters, 22/4/2001, CX52439). According to the country information on p. 11, the Syrians know exactly which Palestinians are pro- and anti-Arafat in Lebanon as well as Syria, and therefore would have been able to locate a particularly wanted person such as the applicant claims his father was. Except for a short period in 1999, pro-Syrian PLO factions were in control of the huge Palestinian refugee camp in Sidon, Ein el Hilweh (Annual Assessment of Conditions Affecting Refugees, 2000 - Lebanon, US Committee for Refugees, CX44191), and I consider that they would have aided Syria in seizing a pro-Arafat militant particularly sought by Syria. It is certainly not the case that Fatah operatives are immune from arrest in Sidon (Lebanese Authorities Arrest Fatah Member in Sidon, Reuters, as sourced from As Safir newspaper [Lebanon] , 28/2/2001, CX50830).

7.  Given the information in the paragraph above, I consider that if the applicant's father had been wanted by the Syrians, they would have been able to arrest him many years ago. I find it implausible that he would have remained at large. The fact that he was not arrested indicates that he was not, contrary to the applicant's claim, wanted by the Syrian forces.

8.  The applicant's explanations as to why the Syrians had not been able to arrest his father in Lebanon lack credibility. He claimed that his father was in Saida (Sidon) and that the PLO (pro-Arafat PLO to be exact) had continuously controlled Sidon from the Lebanese civil war onwards. In fact, pro-Arafat armed Palestinian forces ignominiously quit Lebanon in August 1982 (Fisk, Robert: Pity The Nation, pp. 319-347, 2nd edn, 1992, OUP, RRT Library), and even though there are still pro-Arafat militants in refugee5arnps in Lebanon, the applicant's claim of the Palestinians controlling Sidon is unsupported by independent evidence as far back as 1992:

      Syria has succeeded in becoming the unrivalled authority in Lebanon. ... Palestinian power and influence in Lebanon has been drastically reduced, first by the Israelis in 1982, and more recently by the Lebanese army troops who last year moved into Sidon, 25 miles south of Beirut, to extend state control over the area and clashed with PLO fighters.

      - Who's Got the Most Clout - Which of Military and Political Forces Exercises Most Power and Influence?, Reuters, 1/9/92, CX6721

9.  The situation above has not changed as independent evidence such as CX50830 above shows.

10.  I find it most implausible, had the Syrians wanted to arrest the applicant's father or target the applicant for serving the same political ends as his father, that they would have allowed him to (according to his evidence) cross back and forth into Lebanon for several years to visit his father. The circumstances claimed by the applicant would indicate that the Syrians would have viewed his movements with deep suspicion and I consider that in those circumstances they would have at the very least blocked his travel, and more probably that they would have used the opportunities to arrest both him and his father. Therefore, if the applicant was able to travel in and out of Lebanon for years to visit his father, I am not satisfied that the Syrian authorities viewed him or his father as being suspect or wanted persons.

11.  In sum, I am not convinced that the Syrian authorities had been targeting the applicant's father in the manner claimed, and for that reason and the reason in the paragraph above, I find a lack of credibility in the claim that they had been targeting the applicant himself, or other members of his family, over the father's alleged political record or for imputed pro-Arafat beliefs. I consider that the applicant has fabricated claims of interrogation, detention, discrimination and persecution relating to his father's alleged record.

12.  Neither am I satisfied, given the country information discussed so far, that the applicant had been detained and interrogated over his brother Khaled's militant Fatah role in Lebanon in 1985. Independent evidence does not demonstrate that the Syrian authorities targeted the families of individual Fatah fighters who fought in Lebanon in the civil war there.

13.  I am not satisfied that the applicant had been arrested and detained for three weeks in October 1999 over incidents in which two other brothers were said to have been involved because there is no independent evidence that bears out the applicant's claims relating to that period: i.e. there is no mention in the annual Amnesty International and US State Department reports on Syria (or even Lebanon) for 1999 that mention that Syria had apparently played a trick on Palestinians by allowing 15,000 of them to flood into Lebanon and then arresting 300 on their return to Syria, or any mention of demonstrations in Aleppo relating to those arrests (to recapitulate, the applicant had claimed that his brothers had been among those arrested, and that he had been arrested when he had taken part in consequent demonstrations).

14.  While I accept that the applicant could have had a cousin who had been arrested in 1980 for being in the Muslim Brotherhood, I am not satisfied that the applicant would have been detained and interrogated several times over that connection given DFAT's advice that the Syrian security forces do not consider the Brotherhood as "currently being a serious threat" and have in recent years freed hundreds of members of the Muslim Brotherhood including such activists as Haytham Qimbaz, a leading figure in the Brotherhood, who had once faced the death penalty and who had been under arrest since the early 1980s (DFAT Country Information Report No. 43/01 of 21/1/01, CX49172). The secretary general of the Muslim Brotherhood, Abdel Fatah Abu Ghuda, was allowed to visit Syria in 1998 for the first time since the massacres of Brotherhood members in Hama in 1980 (Assad's Gradual Perestroika, Reuters, 12/11/98, CX32907). I accept, as the applicant's adviser submits, that hundreds of Islamists, including members of the Muslim Brotherhood, had been arrested in 1999, but I also note that most were freed within a short time (Country Reports on Human Rights Practices, 1999, Syria, US State Department, s.1d). I am not satisfied that that incident demonstrates that the applicant faced persecution for having had a cousin in the Brotherhood in 1980. Given the totality of the information in this paragraph, I am not even satisfied that the applicant would be persecuted simply for a real or imputed political opinion sympathetic to the Muslim Brotherhood. I note that the applicant himself has never claimed to have been a member of the Muslim Brotherhood, and I consider that the Syrian authorities would be aware of this. I consider that the applicant has fabricated a claim of danger over a Muslim Brotherhood link to boost his application for a protection visa.

15.  In sum, on the basis of all of the above, I am not satisfied that there is credibility in the applicant's claims of being targeted and of facing persecution over family political records,

The applicant's alleged individual political activities;

16.  I am not satisfied that the applicant had been targeted over his own alleged political activities or political sympathies because he did not display even rudimentary knowledge about the political groups with which he claimed an association, and because the claims he made about those groups are unsupported by independent evidence.

17.  It is implausible that the applicant would have been harmed by Syria or that he faces harm such as a jail sentence for being a member of the DFLP (whose leader he correctly identified as being Mr Nayef Hawatmeh) or for writing slogans in support of that group because, contrary to his claim that the DFLP had long been held in suspicion by Damascus, the DFLP is one of the rejectionist groups backed by the Syrian Government. He is wrong in stating that the DFLP had been forced out of Syria in 1998: independent evidence shows that the group was operating in Syria at least as at July 1999 (Syria Reportedly Advises Palestinian Groups to 'Prepare for Peace', Reuters, 20/7/99, CX48022), and I have seen no independent evidence that it has been abandoned by Syria. I am not satisfied that there is any reason why, as his adviser suggests, the applicant as an individual would be targeted for a claimed DFLP linkage when the group as a whole is supported by Syria. The applicant's claim of jointly supporting Hawatmeh, another PLO leader named George Habash, and Yasser Arafat lacks credibility given that Hawatmeh and Habash have been strongly opposed to Arafat's policies (Ibid.); it is implausible that a pro-Arafat activist would be an activist of the rejectionist groups as well.

18.  The applicant's claim of being thought to be a member of the PLO faction led by Sabri Al-Banna is implausible. Sabri Al Banna is more widely known by his nom de guerre, Abu Nidal. The applicant's apparent lack of knowledge of Abu Nidal either indicates that he is quite ignorant of the group or that he was feigning ignorance. In either case, I am not satisfied that he credibly demonstrated that the Syrian authorities thought him to be a member of Abu-Nidal. Far from the Abu Nidal group being a party of "very normal people", it is "the most dangerous, active and murderous Palestinian terror organization in the 1980s [and] has carried out operations and terrorist acts against targets of various Arab countries, more than any other Palestinian organization, and also against Palestinian militants considered to be too moderate" (Revolutionary Council - Abu Nidal Organisation, 22/12/00, CX48020). Abu Nidal is violently opposed to Arafat, has attempted to assassinate Arafat, has murdered a number of close aides of Arafat, and has quit the PLO in opposition to Arafat's policies (a basic fact apparently unknown to the applicant, who insisted otherwise). It is out of the question, in my view, that the applicant could claim to be pro-Arafat and at the same time discuss a common cause with Abu Nidal supporters, as he claims to have done. I am not satisfied that he could have done so, and therefore I am not satisfied as to the credibility of his claim that the Syrrian authorities were targeting him over alleged connections with Abu Nidal supporters.

19.  In all, given the applicant's lack of knowledge of the parties that he claims to have been associated with, I find it implausible that he would have had the political profile he claims to have had, and therefore I am not satisfied that he was targeted by the authorities over an adverse political profile. There is thus no basis on which to assume that he faces a real chance of persecution in this regard in the future.

Claim of persecution for being Palestinian:

20.  I note the applicant's advisers' claim that the Palestinians in general are persecuted because of Syria's attitude to the PLO leader, Mr Yasser Arafat. The country information cited on pp. 9-11 does not support a claim that Palestinian refugees in Syria are persecuted in political terms. The applicant's advisers have cited a Swedish report in support of their submission that Palestinian refugees are persecuted in Syria. I have read in full the Swedish report cited by the applicant's advisers (p. 8) and note that the report's compilation began in 1998 and ended in 2000 and that Syria occupied just three paragraphs in the report. The Tribunal has given more weight to other material on Palestinians in Syria cited in this decision as the other material is more recent, far more detailed, and includes evidence from Palestinian and other Arab researchers constantly monitoring the Middle East.

21.  As stated on pp.9-11, independent evidence does not indicate that Palestinians in Syria are persecuted in political terms. Neither, based on the material given below, am I satisfied that Palestinians are persecuted in terms of general liberties and rights.

22.  The 380,000-Pa1estinian refugees registered with UNRWA in Syria receive services and benefits equal to those enjoyed by Syrian nationals. That is, they have similar access to employment, education and health services. The equality of treatment they receive would extend to protection against violence. They may purchase property, but not agricultural land. They may not vote in national elections but may hold membership of the Ba’ath Party and participate in party elections (DFAT Country Information Report No. 494/00 of 28/6/2000, CX44681; DFAT Country Information Report No. 605/00 of 27/9/2000, CX46791). A study by Elia Zureik (professor of sociology at Queen's University, Ontario, Canada, and a member of the Palestinian delegation to the Middle East peace talks) notes detailed research by Palestinian and other Arab academics that in 1992, in per capita terms there were more Palestinian than Syrian university graduates in Syria. Zureik states that 70 per cent of Palestinians in Syria own their homes and makes the general observation, "This is not ... a deprived community" (Zureik, Elia: Palestinian Refugees and the Peace Process, a Final Status Issues paper, published by the Institute for Palestine Studies, 1996, ISBN: 0- 88728-266-0, http://www.ipsips.organisation/html/zureik.htm).  

23.  The study sponsored by Badil, a community-based organisation registered with the Fatah-linked Palestinian Authority notes that Palestinian refugees in Syria have "obtained a wide range of civil rights", including the right to own more than one business, the right to lease property, the right to union membership, and untrammelled travel and right of residence anywhere in the country (Rempel, Terry, ed: Palestinian Refugees in Exile, Country Profiles, Syria, 2000, p. 32, Badil Resource Centre for Palestinian Residency and Refugee Rights, Bethlehem, Palestine, http://www.badil.org/Campaign /Packet/eprofile.pdf). Bail reiterates that Syria provides "secure civil and social rights" for Palestinians (p. 31).

24.  The United States Department of State survey, Country Reports on Human Rights Practices 2000, Syria, states (at s.2d) that Palestinian refugees do not report unusual difficulties travelling in and out of Syria. DFAT concurs, stating that UNRWA-registered Palestinians usually have no difficulty in obtaining a Palestinian refugee travel document, that they may leave and enter Syria as they wish (CX44681; CX46791).

25.  Al-Mawed (cited in full on p. 10) found that Palestinians "dispersed in every part of Syria" said alike that "life in Syria is stable". He was told by an academic, Professor Yousef Salameh of Damascus University, that: "The good treatment of Palestinians in Syria enhanced the Palestinian national identity".

26.  The fact that the applicant remains stateless within Syria and without Syrian nationality although born in that country, is not because of any persecutory intent by the Syrian authorities but because Damascus is following an Arab policy stance to shore up the rights of Palestinians to a State of their own (ref. the Casablanca Protocol, 1965 - The State of the World's Refugees: A Humanitarian Agenda, UNHCR, November 1999, Box 6.3 The Problem of Palestinian Nationality, http:unhcr.ch/world/mide/ palestin.htm). Syria does not allow this ideological stand to affect the civil rights of Palestinians within its borders but treats them in all basic respects as equals with Syrian citizens. The applicant's rights of residence in Syria, exit from and re-entry to that country are untouched by his lack of Syrian nationality.

27.  On the basis of the independent evidence above, I am not satisfied that the applicant faced, or faces persecution, or discrimination amounting to persecution, purely for being a Palestinian refugee in Syria. That finding remains unchanged by the applicant's assertion of being pro-Arafat.

Sur place claims :

28.  I am not satisfied that there is credibility in the applicant's claims of being persecuted and facing persecution over alleged family political links, or because of a claimed individual political profile. Neither am I satisfied that he faces persecution in Syria simply for being a Palestinian.

29.  Thus I am not satisfied that he left Syria to escape persecution.

30.  Given that I am not satisfied that the applicant left Syria to escape persecution, I am not satisfied that he left illegally. The fact that he paid a bribe for a passport does not demonstrate that he would have found it difficult to obtain one without a bribe. Noting the fact that Palestinian refugees in Syria find no extraordinary difficulty in obtaining travel papers or in leaving Syria for travel, I consider that the applicant left normally and openly.

31.  I accept that the applicant might have used a people-smuggler to get him to Australia, and that he might have disposed of, or hidden his passport before arriving in this country for purposes of his own. Even so, independent evidence shows that he could return to Syria once his identity and UNRWA registration is confirmed by the Syrian authorities (DFAT Country Information Report 453/00 of 13/8/2000, CX43812): I see no reason why this would be difficult to do through UNRWA and Syrian records and the existence of the applicant's family in Syria. I note DFAT's comment that broad agreement has been reached with the Syrian Interior Ministry over arrangements for returning Syrians and Syrian Palestinians who enter Australia illegally (DFAT Country Information Report 100/01 of 19/3/01, CX51305). For the record, I will note that even if the applicant had left Syria illegally - and I am not satisfied that he had done so - he would not face persecution but, according to DFAT be punished under a law of general application governing illegal exit ("Palestinians, or anybody for that matter, who departed Syria illegally would be likely to be penalised on return to Syria" - CX43812).

32.  The applicant's adviser has posited an apparent sur place claim of persecution based on DFAT's comment:

      On return to Syria, Syrian-born Palestinians who sought protection in another country may not be of particular interest but by virtue of their actions might be regarded as having made negative claims or statements against Syria which could attract local attention.

      DFAT Country Information Report 605/00 of 2719/2000, CX46791

33.  I am not satisfied that the comment above demonstrates that the applicant would be persecuted. In the first place, the comment falls very short of indicating a prospect of harm, and in the second place, the applicant being, as I consider, a person of no significant profile, and his claims being kept confidential by Australian authorities, I am not even satisfied that he would "attract local attention" back in Syria. I find it implausible that the applicant would go out of his way to attract opprobrium, and I consider that he would simply be treated as someone who broke immigration laws of another country (i.e. Australia).

Summary:

34.  In short, for all the reasons given above, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Syria such that Australia is obliged, as a Convention signatory, to give him protection.

35.  I note that the Federal Court has decided that persons such as the applicant who are registered by UNRWA are entitled to certain assistance from that organisation and are thus excluded from the Convention by virtue of Article ID (Abou-Loughod v MIMA, [2001] FCA 825, Heerey J, 26 June 2001, at 13). Whether or not this applicant is excluded from the protection of the Convention under Article ID, I find that he is excluded under Article 1A in that I am not satisfied that he faces a real chance of persecution on return to his country of former habitual residence.

CONCLUSION

36.  Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.” 

GROUNDS OF THE application

4                     The applicant does not appear to have had legal assistance in drafting his application.  In it the applicant stated that he was aggrieved by the Tribunal’s decision because:“

“I can’t go back to Syria because I have a well founded of fear (sic).”

5                     No grounds were stated in the application.  In that part of the printed form of application which made provision for the grounds there was the following statement:

“The submission well fellow (sic)”.

my reasoning

6                     The applicant was not legally represented at the hearing before me today.  He made oral submissions which were either of a factual nature or went to the merits of the Tribunal’s decision, or both.  He also tendered a Lebanese identity card and an identity card which were said to confirm his membership as a soldier of the Democratic Front for the Liberation of Palestine.  Both documents were in Arabic.  Mr Abu‑Amsha, an interpreter who interpreted for the purposes of the hearing, was good enough to translate as much as he could read of those two documents.  His translation confirmed that they to be documents of the two types described to me by the applicant.  The applicant stated that neither of these documents had been in evidence before the tribunal.  In my view, those two documents are inadmissible because they are not relevant to any issue which I have to decide.

7                     In the earlier part of its reasons the Tribunal can be seen to have set out the relevant law correctly and there is nothing later in its reasons to suggest that it did not apply the law as earlier recited.

8                     The respondent made what was described as a formal submission in the following terms:

“With regard to the interpretation and application of Article 1D [of the Convention] in this case, the respondent makes the formal submission:

(a)       that the interpretation of Article 1D in Abou‑Loughod v Minister for Immigration and Multicultural Affairs (2001) FCA 825 is correct and the Tribunal erred by not following that judgment to find that the applicant as an UNRWA‑registered Palestinian has a continuing entitlement to the protection and assistance of UNRWA and is therefore excluded from the protection of the Convention by Article 1D;

(b)       that the interpretation of Article 1D in Minister for Immigration and Multicultural Affairs v Quaider (2001) FCA 1458 is not correct.”

article 1D of the refugees’ convention

9                     Article 1(D) of the Convention reads as follows:

“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.”

10                  The Tribunal referred to Article 1(D) of the Convention in paragraph numbered 35 of its reasons above.  The Tribunal considered that it did not have to decide whether persons, such as the applicant, who are registered by UNRWA are entitled to certain assistance from that organisation and are thus excluded from the Convention by Article 1(D).  The Tribunal decided the matter on the basis that the applicant was excluded from the protection of the Convention article under Article 1(A). 

11                  As I have mentioned, the respondent formally submitted that the interpretation placed by French J on Article 1(D) in Minister for Immigration and Multicultural Affairs v Quiader[2001] FCA 1458 was not correct.  In that case French J expressed the view that the Tribunal had not erred by refusing to apply Article 1(D) so as to exclude the applicant from the benefit of the Convention.

12                  His Honour expressed the view that article 1D did not apply to exclude an applicant who was entitled to protection and assistance from the UNRWA if nevertheless he was at risk of persecution if returned to his home region, even if that was a region within the territorial competence of that agency.

13                  I respectfully agree with that conclusion although, strictly speaking, it is not necessary for me to do so on the facts of this case. 

14                  In my view, Article 1(D) should be construed, within reasonable limits, beneficially so as to favour persons who genuinely need international protection, in the sense that they face a real chance of persecution for a Convention reason.  I see that approach as requiring Article 1(D) to be read literally when such a reading advances the interests of genuine refugees and, in the case of ambiguity, to be read purposively to the same intent. 

15                  Accordingly, in my opinion, the first clause of Article 1(D) should be read literally.  But it should not be read (as perhaps its drafters intended – see Quiader at [22]) in the sense of referring to persons who, as at or about 1951, were receiving the relevant protection or assistance.  It should be read, in my view, as applying to persons who are at present (i.e. currently) actually receiving from the relevant United Nations organs or agencies protection or assistance. 

16                  Furthermore, I think that the reference to “or” should be read as “and”.  That is, the reference to the word “or” between the words “protection” and “assistance”.  It would be contrary to the purpose of the Convention to exclude the benefits of the Convention from persons who were persecuted (i.e. not given protection) simply because they might receive (or even were receiving) some form of assistance from the relevant United Nations organ or agency.  Such a construction is permitted in certain circumstances even with Australian domestic legislation – see D C Pearce and R S Geddes “Statutory Interpretation in Australia” (4 ed) para 2.15 at p 38 and the cases there cited. 

17                  I do not think that the words “at present receiving” should be construed as meaning “at present entitled to receive”.  To the extent that this differs from the views expressed by Heerey J in Abou Loughod v Minister for Immigration and Multicultural Affairs [2001] FCA 825, I respectfully differ with those views to the degree which entitles me not to follow them.  It may be that that case is distinguishable on the facts in the same manner as French J distinguished it in Quiader at [32].  

18                  On my construction of the first clause of Article 1(D) and on the evidence before the Tribunal there has never been a time at which the applicant can be said to be “at present receiving” protection or assistance from a relevant UN organ or agency.  Accordingly, the Convention is not excluded from applying to him.  

19                  Similarly, there never having been “such protection or assistance”, I do not consider that the second clause of Article 1(D) has any application.  Accordingly it is not necessary for me to consider the other submissions about the second clause which were put to me on behalf of the respondent.   

20                  The Tribunal went on to consider in its reasons whether the applicant had a well-founded fear of persecution.  It found that he did not have such a fear.  The basis for the Tribunal's decision was simply that it did not believe the applicant.  This can be seen in paragraphs numbered 2, 4, 8, 11, 14, 15, 16, 18 and 28 of its reasons.  In particular, the tribunal disbelieved the applicant's claims of persecution for the alleged political records of his family members and his own alleged individual political activities.  It relied on independent country information for its conclusion that the applicant did not face persecution for being a Palestinian in Syria. 

21                  I was initially concerned that the Tribunal's rejection of the comment from the Department of Foreign Affairs and Trade set out in paragraph 32 might have disclosed some error of law.  However, its reasoning for that rejection is set out in paragraph 33 and in my view discloses no error of law or of jurisdiction. 

22                  In my opinion, the Tribunal's conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the refugees convention was open to it on the material before it. 

23                  In the earlier part of its reasons the Tribunal can be seen to have set out the relevant law correctly and there is nothing later in its reasons to suggest that it did not apply the law as earlier recited. 

24                  There is accordingly no basis for setting aside the Tribunal's decision as no jurisdictional error, error of law or any other reviewable error has been disclosed.  The application will be dismissed with costs. 

A/g Associate:

Dated:              17 December 2001