FEDERAL COURT OF AUSTRALIA

Jaber v Minister for Immigration and Multicultural Affairs

[2001] FCA 1878

MIGRATION – refugee – refusal of protection visa – application for review of decision of Refugee Review Tribunal – stateless Palestinian resident in Syria – registered with the United Nations Relief and Works Agency – whether “at present receiving … protection or assistance” from UNRWA within the meaning of Article 1(D) of the Refugees’ Convention – whether exclusion worked by first paragraph of Article 1(D) continues to apply to an applicant outside the area of protection provided by UNRWA – whether the circumstances described in the second paragraph of Article 1(D) give rise to the person concerned automatically qualifying as a refugee regardless of whether he or she has a well-founded fear of persecution.

Migration Act 1958 (Cth), s 36(2)

Migration Regulations, reg. 2.03, Schedule 2 Item 785, 866

Minister for Immigration and Multicultural Affairs v Savvin [2000] FCA 478 referred to

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied

Abou Loughod v Minister for Immigration and Multicultural Affairs [2001] FCA 825 not followed

Minister for Immigration and Multicultural Affairs v Quiader [2001] FCA 1458 followed

Goodwin-Gill “The Refugee in International Law” (2 ed), 92

Grahl-Madsen “The Status of Refugees in International Law” 1966 Vol 1, 141

Hathaway “The Law of Refugee Status”, 208

NEZAR MOHAMED ADEL JABER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 428 of 2001

CARR J

20 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 20 August 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 is a Palestinian who was born and resided in Syria.  He was and is registered with the United Nations Relief Works Agency (“UNRWA”), and arrived in Australia on 3 September 2000 without a passport.  On 26 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 was a Palestinian refugee born and resident in Syria and registered with UNRWA.

·          He is a hairdresser by profession.

·          One of his regular clients was a businessman.  He used to go to that man’s house to cut his hair.

·          On 15 May 2000 he had been styling this man’s hair when Syrian political/ security officials raided the man’s house and put everyone there under arrest, including the applicant.

·          The applicant had been questioned about what he was doing there and had explained.  He had been told that the businessman was smuggling antiquities.  [There are references variously in the papers to “antiques” and “antiquities”.  I have chosen “antiquities”].  He denied knowing anything about that, but had been detained, interrogated and tortured until 20 July 2000.  (When asked to explain his use of the word “torture” he said that he had been kept alone in a dark cell).

·          He had then been freed, but was ordered to surrender his identity card and to report twice a day to the investigating officers.  He had done this until 1 August 2000 and then left for Australia. 

·          The businessman accused of smuggling antiquities still remained in detention. 

·          The applicant had used his own genuine passport, issued by the Syrian authorities, to leave that country.  A man he knew had organised his air ticket and visa for Indonesia from which he had taken a boat trip to Australia.

·          He was frightened to return to Syria because he would be detained again on the accusations made against him of knowing about antiquities smuggling.  Also the situation of Palestinians in Syria was “not normal”.

·          He subsequently explained that he had been in the hairdressing business for eleven years except for his 2½ year stint of national military service.  From January 2000 he had owned his own salon. 

·          In the written statement of claim accompanying his protection visa application the applicant made some new claims.  He said that the businessman whose hair he used to cut had, in August 1998, asked him to come to his home for a party.  When he had got there he had been told to cut the hair of ten men waiting there.  The businessman told him later that these men were Palestinian activists of the main PLO faction, Fatah, that they had been gaoled but released in 1991, they were against the ruling Syrian Ba’ath party and that the businessman was trying to help them escape from the country. 

·          The businessman asked the applicant whether he wished to help in such work and the applicant had agreed to deliver money to the families of gaoled people, feeling that he was helping the Palestinian cause in this way.

·          In April 1999 he had been given another job – to bring some men from a Palestinian refugee camp near Damascus to the businessman’s farm, from where they would be smuggled out of Syria.  He had done this, and done it again six months later. 

·          He had been released from detention in July 2000 after promising to be a spy for Syrian intelligence i.e. to tell the government about any contact which he had with the businessman’s friends.  He had also to report to the intelligence office every day.

·          Upon return from detention he had found that the Syrian authorities had ransacked his shop, destroyed some property and insulted his family. 

·          He was so incensed about this that, in early August 2000, he had related his experiences to customers in his shop, he had insulted the Syrian authorities as being “filthy, miserable” types, and announced that he would never collaborate with them but would rather work with Jews.

·          A fews day later his uncle had angrily told him that because of this outburst he had placed himself in danger; a Syrian Security Force officer had told the uncle that the applicant would be “paying” for his criticism of the regime, that he was now wanted and at risk of arrest.  His uncle had told the applicant to flee from Syria.

·          On 27 August 2000 the applicant fled Syria using his own passport but employing a people smuggler to exit “illegally” through normal passport controls at Damascus airport.

·          If he returned to Syria he would be executed for having criticised the Syrian Government, because the businessman might have given false information about him or somehow implicated him in his activities, and because he had left Syria illegally to seek refuge in Australia.

·          At the hearing before the Tribunal, the applicant made a new claim that he would be harmed on return to Syria because the businessman had (in fact) told authorities that he had been involved with Palestinian activists. 

·          His brother had faxed him to say that their family was being harassed by the Syrian authorities over his departure, and that the applicant’s father had been detained many times and questioned.

·          The applicant’s advisers claimed that the applicant’s individual claims of being targeted for real or imputed political opinions hostile to the Syrian State, his illegal departure from Syria, and his Palestinian race would lead to him being persecuted on return to Syria.

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 Palestinian refugee born and resident in Syria and registered with the United Nations Relief Works Agency (UNRWA).

The applicant and the Convention:

2.  I do not accept the applicant's advisers' suggestion that the applicant, a stateless person, should be given refugee status regardless of the validity of his individual claims (as per Goodwin-Gill, p. 92, cited by the advisers on p. 10 of this decision). The Full Federal Court has held that Article 1A(2) imposes the requirement that a person, whether stateless or not, be found to have a well-founded fear of persecution for a Convention reason before being granted protection under the Convention (MIMA v Savvin & Ors [2000] FCA 478).

3.  As for the applicant's advisers' other arguments, I note that the Federal Court has affirmed that persons such as the applicant who are entitled to assistance from a UN agency are consequently excluded from the Convention by virtue of Article ID (Abou-Loughod v MIMA, [2001] FCA 825, Heerey J, 26 June 2001, at 13). That ruling was apparently made in the context of deciding whether persons to whom Article 1D is pertinent are yet excluded from receiving asylum when they are outside the relevant UN organs' geographical reach: the court cited with approval the refugee law expert, Professor James Hathaway's belief that Article I(D) "does not exclude only those who remain in Palestine, but equally those who seek asylum abroad" (Hathaway: The Law of Refugee Status, Butterworths, Toronto, 1991, at p. 208).

4.  While I acknowledge that the exclusionary intent of Article 1D is clear for people such as the applicant. I am uneasy as to whether Article 1D's exclusion of people receiving protection "or" assistance from UN agencies would adequately answer an individual applicant's need for protection from persecution in his country of habitual residence (particularly in cases where claims are being made against the host country).

5. The assistance provided by UNRWA is primarily in the areas of "health, education, social and emergency aid (Report from the Fact-Finding Mission to Lebanon, 1-8 May, 1998, s.5 A-C, Danish Refugee Council and Danish Immigration Service, October 1998, RRT Library) and that when UNRWA in Lebanon was specifically asked for UNRWA’s own view of the Article 1.D clause and its scope, it consulted head office in Gaza and,

      announced that the clause's application is a matter of interpretation, but it is the UNRWA's clear understanding that its mandate does not extend to protection from persecution. but merely embodies a number of practical aid measures.

      - Ibid.

6.  It would be regrettable if a design for the political welfare of certain peoples such as Article 1D is, has had the effect of closing a necessary avenue of protection for individuals under threat of harm in certain circumstances. I find it difficult to reconcile, "in good faith, … the object and purpose" of the Refugees Convention with a caveat focusing on mere assistance, rather than protection from persecution.

7.  The issues raised above might deserve more scrutiny at another time. They do not alter the result of this decision. Whether or not this applicant is excluded from the protection of the Convention under Article 1D, 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, Syria. The reasons for this conclusion are given below. 

Persecution for being a Palestinian refugee in Syria:

8.  The applicant has claimed that Palestinians are not well-treated in Syria; his advisers submit that, in Syria, Palestinians in general are persecuted because of Syria's attitude to the PLO leader, Mr Yasser Arafat. The applicant's advisers have cited a Swedish report in support of their submission. I have read in full the Swedish report cited by the applicant's advisers and note that the report's compilation began in 1998 and that Syria occupied just three paragraphs in the report. The Tribunal has given more weight to other material on Palestinians in Syria cited below as the other material is more recent, far more detailed, and includes evidence from Palestinian and other Arab researchers constantly monitoring the Middle East.

9.  The fact that the applicant remains stateless within Syria and without Syrian nationality 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://www.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.

10.  The 380,000 Palestinian 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 (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 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.org/html/zureik.htm) .

11.  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).

12.  Palestinians "dispersed in every part of Syria" have stated alike that "life in Syria is stable" (Al-Mawed, Dr Hamed Said: The Palestinian Refugees in Syria - Their Past, Present and Future, p. 63, 1999, prepared for the International Development Research Centre, Ottawa, Canada, RRT Library). Dr Al-Mawed was told by an academic, Professor Yousef Salameh of Damascus University of “[t]he good treatment of Palestinians in Syria" .

13.  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). Not being a Syrian citizen, the applicant is not entitled to a Syrian passport: however, he is entitled to, and received, a Syrian-issued Palestinian travel document to allow him to travel. I accept the applicant's claim that as a Palestinian refugee he might find it difficult to obtain visas for certain countries such as Jordan (which has a huge population of Palestinian refugees of its own). However, such difficulties are not imposed by Syria but by those other countries (DFAT states that Palestinians "often have difficulty obtaining visas for other countries" (CX44681): therefore it cannot be said that the issue shows that Syria persecutes Palestinians. Badil notes that "one of the most important" rights granted to Palestinians under Syrian law is their right, after travelling out of Syria, to return without a re-entry permit - unlike the situation in some other countries. As with Syrian nationals, a Palestinian refugee's travel document can be changed or re-issued by any Syrian representative office abroad. New changes to the law allow Palestinians, like Syrian nationals, to travel between Syria and Lebanon simply using ID cards (Badil).

14. While it is correct that, being registered with UNRWA, the applicant received educational, medical and welfare assistance from UNRWA, it is not correct to imply as he does (p. 9, paragraph 3) that Syria withholds assistance and social benefits. Whether or not the applicant availed himself of UNRWA-donated educational and medical services, for example, he would receive the same benefits in these areas from the Syrian Government as Syrian nationals receive (see p. 13 of this decision, last paragraph). The Badil study notes (chap: Legislation and Palestinian Civil Rights, p. 32) the laws successively passed by the Syrian Government to assist Palestinian refugees in that country.

15.  Politically, while the Syrian authorities were greatly opposed to the PLO Chairman, Mr Yasser Arafat in the 1980s, I find that that attitude has changed. In 2000, Mr Arafat was invited to Syria, his first official visit in six years (Hamza, Issam: Arab Committee Formed to Back Palestinian Uprising, Reuters, 18/1/2001, CX48717). In April 2001 Syria extended official recognition to the passports issued by the Palestinian Authority (PA - the Arafat-controlled administrative body operating in the Occupied Territories). A Palestinian official is quoted as saying that the move is a sign of "reconciliation", as were the Syrian media's new acknowledgment of Mr Arafat as “Chairman of the PLO" (Syria Reportedly Recognises Passports Issued by Palestinian National Authority, Radio Monte Carlo, via BBC Radio, 5/4/2001, CX51803). The Syrian ruling Ba'ath Party in December 2000 invited representatives of all 14 groups in the intifada command, including Mr Arafat's Fatah, to Damascus to combine efforts to fight the intifada (Jansen, Michael: Deal in the Offing?, Middle East International, 22/12/2000, RRT Library.)

16.  It is not the case that Palestinians who express pro-Arafat views are by virtue of that fact persecuted. There is continuous strong debate by Palestinians in Syria about different paths to peace (Al-Mawed, p. 72). Al Mawed was told by a Palestinian academic Professor Ahmed Barqawi, that in Syria, Palestinians lived in a society which "has no intention to negate our self-awareness" and which did not induce the “tension and anxiety” felt by Palestinians elsewhere (p. 63). The Arafat-linked Badil researchers also found that Palestinians in Syria did not find their political allegiances repressed:

      Despite the official Syrian support of the separatist forces … Palestinians in Syria continued to support the major PLO factions. Due to this fact, and due to the activity of Palestinian political forces in Syria, Palestinians in Syria continue to closely follow and respond to new developments related to Palestinian issues. (p. 30)

17.  Research document SYR28566.E (REFINFO) states that many pro-Arafat Palestinians who had in past years been imprisoned in Syria continue to live in that country following their release; this does not indicate that they fear persecution simply for being pro-Arafat.

18.  The range of independent evidence above does not demonstrate that the applicant faces persecution, or that he would have experienced persecution, simply on account of his race or position as a stateless Palestinian refugee in Syria.

The applicant’s individual claims:

19.  Given the independent evidence above, such as the evidence on the stability of life for Palestinians in Syria, I am not satisfied that whatever individual problems the applicant faced in Syria would be exacerbated - at least significantly so - by him being a Palestinian refugee.

20.  I am not satisfied that the applicant's initial claims, if true, cause him to come within the ambit of the Refugees Convention. If by sheer accident (as his claims indicate) he had been caught up in a police raid on the house of a man suspected of smuggling antiques out of Syria, and been detained briefly and questioned over his connections with the man, I consider that such an experience would have been caused by his apparent link with a criminal identity, not because of any Convention reason. The fact that he had been questioned and released indicates that the authorities had satisfied themselves that he had no involvement in crime but had been innocently in the vicinity at the time of the culprit's arrest

21.  I am willing to accept that the applicant might have been roughly treated while in detention for questioning over the smuggling racket, but am not satisfied that such treatment would have amounted to torture, as he claims, and his own evidence does not indicate that he suffered significant harm. I am of the firm view that the police would have fairly quickly satisfied themselves that the applicant had been a hapless hairdresser with no history of crime, who had been accidentally caught up in a police raid and had no knowledge of a well-organised antiques smuggling operation. Given this, I consider that the applicant would have spent only a short time in detention, not two months as he alleges, and I am not satisfied that he would have been treated harshly.

22. The fact that the applicant had been released and allowed to leave Syria unhindered does not indicate that there is a real chance that he would be re-arrested over the smuggling racket. However, even if he were to be questioned over smuggling later, I find that such questioning would result from the Syrian authorities' intention to secure a criminal prosecution over antiques smuggling rather than an intention to persecute the applicant for a Convention reason.

23.  Given that the applicant was not deprived of a passport and was allowed to leave Syria unhindered, I am not satisfied that the authorities had an intention to block his departure. However, if he had broken his conditions of release which had apparently involved regular visits to a police station, I accept that he might face a penalty. I am not satisfied that the Syrian authorities, in ordering any such penalty, would be motivated by a Convention ground.

24.  In all, I am not satisfied that the initial claims made by the applicant demonstrate that he has a well-founded fear of persecution under the Convention.

25.  The applicant's claims changed to an amazing extent after his initial interview with an official of the Department. From a simple recital of a tale of a detention connected with antiques-smuggling, the applicant went on to bring in completely new claims of being involved also in apparently suspect Palestinian political activity, of being asked to be a political informer for Syrian Intelligence, and of having to flee after having slandered the Syrian Government and made public his unwillingness to be a Government informer.

26.  If the new claims were true, why did the applicant not mention them at the initial interview? He claimed at the hearing and in response to a Tribunal letter sent under s.424A of tile Act us that it was because he had been told by his interlocutor to be very brief at the initial interview, because he was tired after his boat journey from Indonesia a few days previously, because he was anxious and apprehensive about his future, and because he had not known about the specificities of the Convention.

27.  I do not accept the applicant’s claim of having been instructed to be very brief. He said that the tape of the interview would bear out this allegation, and his advisers appeared to support this contention in their submission. I find that the tape does not provide evidence of the applicant having been ordered to be very brief at the interview. The applicant has fabricated this claim. He was, in fact, given ample opportunity to state his claims in full at that interview. I cannot understand what reason the applicant's advisers had for stating that the tape proved the applicant's claim of having been asked to be brief.

28.  I accept that the applicant might have been still recovering from the physical effects of the journey from Indonesia. However, I consider that he has exaggerated the claimed ill-effects of the journey. He did not undergo his initial interview straight after coming off a vessel when he might have been truly disoriented and weary, but two weeks later (he arrived on 3 September 2000 and was interviewed on 17 September 2000). I am not satisfied that he would still have been so tired etc. at that point as to have forgotten most of his major claims.

29.  I accept that is a stressful thing for a person to leave his country and pay a deal of money to be taken to an alien land where officials speaking in an unfamiliar language would subject him to lengthy questioning which would test his ability to make a success of the venture embarked upon. It is indeed necessary to make allowance for nervousness, unfamiliarity with procedure, and perhaps fear, when making judgements about the evidence given by applicants in such situations. Nevertheless it is open to the Tribunal to reach commonsense conclusions about why an applicant had not advanced major and significant claims when he was first asked why he left Syria and needed to come to Australia.

30. In answer to Question 3, “Why did you leave Syria [your country of  ... residence?]" the applicant gave quite detailed reasons, and they were all to do with suspected involvement in a smuggling racket: there was no mention of secret and risky political activity, or of having been pressured into being a spy, or of being in great fear of arrest over criticising the Government of Syria. It cannot, surely have been that the applicant had not thought that those claims were unimportant or less important than the smuggling claims, given that he later gave great importance to them. It cannot have been that he had avoided mentioning these claims because he had thought he could safely make them later, given that at the start of the interview he had been explicitly advised that if any information given at any future interview was different from what was being given at the initial interview, his credibility could be held to be in doubt. (The applicant had answered “Yes" when asked whether he had understood this and other similar advice.) It cannot have been that the applicant had been too rushed to make these claims: the detail of his evidence in relation to Question 3 does not show that he had been rushed by his interlocutor; the tape does not show that he had been cut off from answering fully; the applicant answered in the negative when specifically asked whether there were any other reasons as to why he left Syria. While the tape shows a little understandable hesitancy by the applicant at times during the interview, it does not indicate that he had been inordinately flustered and apt to forget major claims.

31.  The fact that the applicant might not have known about the Convention grounds at the initial interview does not adequately explain why he would not have mentioned the claims of alleged involvement in risky political activism, being ordered to be a spy, and being at imminent risk of arrest for having grossly insulted the Government. The interview questions are designed to elicit natural and reasonably comprehensive reasons as to why a person left his country and wanted to stay in Australia. I accept that if an applicant understood the Convention, it would help him understand why certain questions were being asked of him and why it might be important to stress certain matters. However, I am not satisfied that lack of knowledge of the Convention would cause a person such as this applicant to omit making obvious and substantial claims. If, in fact, the direct cause of the applicant's departure from Syria had been an explicit warning that he stood in danger of imminent arrest for having castigated the Syrian Government's actions in ransacking his shop, and for refusing to be a collaborator/spy, why did he not say so at the initial interview? It is not the case that I expect him to have stated those claims instead of the smuggling claims, but together with them and, as he did later, with much emphasis on the political claims.

32.  For all the reasons given above, I am not satisfied that the applicant's later claims involving politics are genuine. I am of the very firm opinion that the applicant fabricated these claims after realising that to gain a protection visa he had to make claims on Convention grounds.

33.  Itis relevant to state that I also find there to be a lack of plausibility in the later claims, as the following two examples show.

34.  First, if the Syrian authorities had really wished to obtain information about political activity that could endanger Syrian national security, I find it quite implausible that they would have blocked their own objectives and wasted time by questioning the applicant for two months about an antiques-smuggling racket. (In passing, I find that the applicant's attempts to backtrack on his evidence on this point: [p. 8, paragraph 1] are another example of his lack of credibility and willingness to invent evidence.) Independent evidence shows that the Syrians take national security seriously, and I do not consider that they would take any but the shortest way to obtaining necessary information on matters that threatened their State.

35.  Secondly, I consider that if a person had clear knowledge that Syrian Intelligence knew about the usefulness of venues such as barbershops for gathering information, he would know that the authorities monitored such places. If, further, that person had been recently released from detention and was under observation and trial himself to test his loyalty as a spy, he would know that he had to behave with great circumspection. In such circumstances, I find it quite unbelievable that this person would choose, in the barbershop itself, and amongst members of the public, to rave publicly about the awfulness of having been asked to be a collaborator.  

36.  In all, I am not satisfied that there is credibility in the applicant's claims of being targeted for political reasons or that Ameen, his client, would have laid false political information about him. I am thus not satisfied that his departure from Syria was due to a Convention- linked factor. Consequently, I am not satisfied that his family has been harassed and harmed for matters linking the applicant to the Convention ground of political opinion.

37.  Given that I am not satisfied that the applicant left Syria in the circumstances he now claims I am not satisfied that he was wanted by the authorities and had to leave clandestinely and/or illegally. Noting the fact that Palestinian refugees in Syria find no extraordinary difficulty in obtaining travel papers or in leaving Syria for travel (see p. 14) 1 consider that the applicant left normally and openly.

38.  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, even if his ID card were still being held by the police. 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).

39.  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).

40.  The applicant's advisers have mooted 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.

      - DFAF Country Information Report 605/00 of 27/9/2000, CX46791

41.  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 (despite his claims) 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:

42.  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.

CONCLUSION

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.  I reproduce below the relevant portions of the application exactly as they appear in that document:

“I have fear of prescution in Syria, and I can’t retured to Syria.”

“The submission follow”.

my reasoning

5                     The applicant was not legally represented at the hearing before me today.  He made an oral submission to the effect that the Tribunal had erred in finding that the United Nations would protect him in Syria.  He said “the U.N. cannot protect us”.  He made no other submissions.

Statutory framework

6                     The following description of the relevant statutory framework is taken from the judgment of French J in Minister for Immigration and Multicultural Affairs v Quiader [2001] FCA 1458 at [19]:

“The grant of protection visas falls within the general statutory framework for the grant of visas for non-citizens and is dealt with in Division III of Part 2 of the Migration Act 1958 (Cth).  There is a general power in the Minister to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia (s 29).  Classes of visas are provided for in the Act and also prescribed under the Regulations (s 31).  Criteria for specified classes of visas may be prescribed in the Regulations (s 31(3)).  Where an application is made for a visa it is to be considered by the Minister (s 47).  If satisfied that the prescribed criteria and other conditions have been met, the Minister is to grant the visa.  If not so satisfied, the Minister is to refuse the grant (s 65).  Protection visas are provided for under s 36 of the Act.  It is a criterion for the grant of a protection visa that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees  Convention as amended by the Refugees Protocol (s 36(2)).  The criterion is replicated in Schedule 2 of the Migration Regulations which, pursuant to reg 2.03, sets out criteria for the grant of various classes of visa.  Item 785 of Schedule 2 deals with temporary protection visas and Item 866 with protection visas.  Both include as a criterion that:

      "…the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention”.”

article 1(d) of the refugees’ convention

7                     The respondent, in his written submissions, raised the matter of the construction of Article 1(D) and its application to the applicant.  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.”

8                     The Tribunal referred to Article 1(D) in paragraphs numbered 2 to 7 (inclusive) of its reasons. 

9                     First, it rejected a submission from the applicant’s advisers that the second paragraph of Article 1(D) operated to confer refugee status on the applicant, regardless of the validity of his individual claims to a well-founded fear of persecution for a Convention reason.  For reasons which I give below, I agree with the Tribunal’s conclusion on this point, but not on the basis that the point was decided in the case referred to by the Tribunal in paragraph 2 of its reasons – Minister for Immigration and Multicultural Affairs v Savvin [2000] FCA 478.  In my view, that point did not arise in Savvin. 

10                  Savvin was a case which involved construction of the definition of “refugee” in Article 1A(2) of the Convention.  The Full Court in Savvin held that it was not sufficient for the purposes of that definition for a stateless person to be outside his country of former habitual residence and to be unable to avail himself of the protection of that country.  The Court held that Article 1A(2), properly construed, also required that person to have a well-founded fear of being persecuted for a Convention reason.

11                  There are learned commentators who take the view that the second paragraph of Article 1(D) operates in the manner suggested by the applicant’s advisers.  For example, Professor Goodwin-Gill in “The Refugee in International Law” (2 ed) expresses such an opinion at 92:

“Palestinian refugees who leave UNRWA’s area of operations, being without protection and no longer in receipt of assistance, would seem to fall by that fact alone within the Convention, whether or not they qualify independently as refugees with a well-founded fear of persecution.”

12                  That view is expressed more forcibly and at greater length in an amicus curiae brief prepared jointly by Associate Professor Susan M Akram and Professor Goodwin-Gill, submitted on a date which does not appear from that document, to the United States Department of Justice Executive Officer for Immigration Review, Board of Immigration Appeal, Falls Church, Virginia. 

13                  Atle Grahl-Madsen in “The Status of Refugees in International Law” 1966, Vol 1 p 141 observed:

“The words ‘ipso facto’ in the second paragraph of Article 1D suggest that no new screening is required for the persons concerned to become entitled to the benefits of the Convention.

This view, which implies that upon cessation of UNRWA assistance and/or protection the persons concerned will become a kind of ‘statutory refugees’, seems to be shared by GUILLEMINET, 162 f.”

14                  Professor Hathaway in “The Law of Refugee Status” in a footnote (footnote 116) to p 208 sets out an opposite view, quoting from the UNHCR “Handbook on Procedures and Criteria for Determining Refugee Status” as follows:

“[A] refugee from Palestine who finds himself outside [the UNRWA operational] area does not enjoy the assistance mentioned and may be considered for determination of his refugee status under the criteria of the 1951 Convention.”

15                  Curiously, Hathaway quotes Grahl-Madsen and Goodwin-Gill as being in accord with that observation. 

16                  It is clear that there are conflicting interpretations and applications of Article 1(D) by these and other commentators. 

17                  I think that I should set out briefly what I consider to be the correct approach to be taken in Australia to the construction of Article 1(D).  As Associate Professor Akram notes (at 31 of her joint brief), Article 31(1) of the Vienna Convention on the Law of Treaties (“the Vienna Convention”) provides:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose."

18                  As Katz J pointed out in Savvin at [90] the Vienna Convention is not applicable to the construction of the Refugees Convention because Article 4 of the Vienna Convention renders that Convention applicable only to treaties which are concluded by States after the entry into force of the Vienna Convention.  The Vienna Convention entered into force as late as 27 January 1980 while the Refugees Convention entered into force on 22 April 1954 and the Refugees Protocol of 1967 entered into force generally on 4 October 1967 and with regard to Australia particularly on 13 December 1973. 

19                  But Gummow J explained in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 277 that the rules of interpretation stated in the Vienna Convention reflect customary international law.  His Honour said this:

“Regard primarily is to be had to the ordinary meaning of the terms used therein [the Convention and Protocol], albeit in their context and in the light of the object and purpose of the Convention.  Recourse may also be had to the preparatory work for the treaty and the circumstances of its conclusion, whether to confirm the meaning derived by the above means or to determine a meaning so as to avoid obscurity, ambiguity or manifestly absurd or unreasonable results.  However, as McHugh J demonstrates by the analysis of the subject in his reasons for judgment, with which I agree, it is important to appreciate the primacy to be given to the text of the treaty.” 

20                  Brennan CJ at 230-231 made the following observation:

“It a statute transposes the text of a treaty or a provision of a treaty into the statute so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty.  To give it that meaning, the rules applicable to the interpretation of treaties must be applied to the transposed text and the rules generally applicable to the interpretation of domestic statutes give way.

In interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretative rules.  The political processes by which a treaty is negotiated to a conclusion preclude such an approach.  Rather, for the reasons given by McHugh J, it is necessary to adopt an holistic but ordered approach.  The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning.  Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources.  The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text.”

21                  Dawson J at 240 agreed that the technical principles of common law construction are to be disregarded in construing the text of a treaty.  McHugh J considered the correct approach to construction at 251-255.

22                  I shall now endeavour to apply to Article 1(D) the approach to construction which was explained in Applicant A.  Hesitant as I am to disagree (as I do on some points) with what appears to be a substantial body of learned commentary, I would construe the Article as follows.  I should say that I have had regard generally to the preparatory work referred to by the commentators in forming my views of the proper construction of Article 1(D).

23                  First, in my view, Article 1(D) should not be read as referring only to persons who, as at or about 1951, were receiving the relevant protection or assistance.  It should be read as applying to persons who are at present (i.e. currently) actually receiving from the relevant United Nations organs or agencies protection or assistance.  This seems to be the view taken by French J in Quiader.  I respectfully agree with his Honour in that regard.  I have not overlooked the observations made by some of the commentators, drawing on the preparatory work for the Convention and in particular Article 1(D), some of whom take a different view. 

24                  It is not necessary for me to decide whether there is now only one relevant United Nations organ or agency, namely UNRWA.  Nor is it necessary for me to decide whether Article 1(D) applies only to Palestinians.  That is because the applicant is a Palestinian of the relevant type (presumably by male descent) and the agency concerned is in fact UNRWA. 

25                  I think that the reference to “or” in the phrase “protection or assistance” in the first paragraph of Article 1(D) should be read as “and”, so that merely receiving such assistance as UNRWA might be able to provide would not give rise to exclusion under the first paragraph if UNRWA did not also provide protection from persecution in the relevant country.  It would be contrary to the purpose of the Convention, in my opinion, to exclude from the benefits of the Convention those 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 of the word “or” would be permissible even in an Australian statutory context – 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. 

26                  In that regard, I agree with the view expressed by the Tribunal at paragraph numbered 4 of its reasons.

27                  I do not think that the words “at present receiving” should be construed as meaning “at present entitled to receive” even though the relevant person may not be within the area of UNRWA’s operations.  To the extent that this opinion differs from the views expressed by Heerey J in Abou Loughod v Minister for Immigration and Multicultural Affairs [2001]FCA 825 (the case referred to by the Tribunal in this matter at paragraph numbered 3 of its reasons), I respectfully differ from those views, to the degree which entitles me not to follow them.  It is possible that Abou Lougod is distinguishable on the facts of this case in the same manner as French J distinguished it in Quiader.  

28                  In Quiader, the Refugee Review Tribunal had found that the applicant for refugee status (the respondent in the Federal Court) had a well-founded fear of persecution if he were returned to Syria.  Although Mr Quiader was registered with UNRWA, and his family received assistance from UNRWA until 1975, the Tribunal followed the interpretation of Article 1(D) in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.  The Tribunal noted that the applicant was clearly outside the relevant geographical area and was not presently receiving assistance from UNRWA.  The Minister, as applicant, submitted to French J that the Tribunal had erred in its construction of the first paragraph of Article 1(D).

29                  His Honour rejected that submission, saying at [33]:

“In my opinion, Art 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.”

30                  I respectfully agree with his Honour’s construction.  As will be seen below, I think that the converse applies i.e. that if there is no real chance of an applicant being at risk of persecution if returned to his country, there is nothing in Article 1(D) which prevents his return to that country.  I now turn to the second paragraph of Article 1(D).

31                  In my opinion, the second paragraph of Article 1(D) is to be construed as providing that when a person who has been receiving protection and assistance from a relevant United Nations organ or agency, but has ceased for any reason to receive such protection and assistance (and his or her position had not been definitely settled in accordance with the relevant General Assembly resolutions) then such person will be entitled to the benefits of the Convention. 

32                  Australia’s relevant protection obligation is the non-refoulment obligation created by Article 33 which reads as follows:

“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…”. [Emphasis added]

33                  I regard as significant the use of the words “benefit” and “refugee” in each of the sub-paragraphs of Article 33.

34                  The reference to “refugee”, in my view, picks up and requires the application of the definition of that term in Article 1A(2).  In short, I do not think that the second paragraph of Article 1(D) operates automatically to confer refugee status on the applicant.  I think that the Tribunal was right to reject the applicant’s submission in that regard.

35                  If it is accepted that the Convention is designed to provide protection only to those who truly require it (as I think it is – see for example Hathaway at p 205), then it would be contrary to that purpose to give automatic refugee status to persons, such as the applicant, who have been found not to have a well-founded fear of persecution.  They would be depriving more deserving and, in that sense, more genuine refugees of their place in the queue.  The international resources for care of refugees are limited.  It is more consistent, in my opinion, to construe the Convention in a manner which will not result in a waste of those resources.

36                  The next issue is whether the Tribunal erred in law or fell into jurisdictional error in its assessment of whether the applicant was a refugee. 

37                  I have scrutinised the papers and the Tribunal’s reasons.  In the first part of its reasons the Tribunal set out the relevant law correctly and, in my view, there is nothing later in its reasons to suggest that it did not apply the law as earlier recited.

38                  The essential basis for the Tribunal’s decision was simply that it did not believe the applicant.  This can be seen from paragraphs numbered 21, 27, 32 (particularly), 34, 35, 36 and 37 of its reasons. 

39                  Finally, the Tribunal dealt with the applicant’s sur place claim.  In my opinion, its reasons for rejecting that claim do not reveal legal or jurisdictional error. 

40                  In my view, the Tribunal’s findings were open to it, and there was sufficient evidence and material to justify its conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.

41                  In my opinion, the Tribunal made no reviewable error whether error of law or jurisdictional error.  

Conclusion

42                  For the foregoing reasons, the application will be dismissed with costs.

A/g Associate:

Dated:              20 December 2001