FEDERAL COURT OF AUSTRALIA

WAJB v Minister for Immigration & Multicultural Affairs

[2002] FCA 1443

MIGRATION – judicial review – Refugee Review Tribunal – jurisdictional error – error of law – stateless Palestinian – application of Article 1D – second paragraph of Article 1D – whether ipso facto refugee – construction of second paragraph of Article 1D – no jurisdictional error or error as to law – application dismissed

Migration Act 1958 (Cth)

Al-Khateeb v Minister for Immigration & Multicultural Affairs (2002) 67 ALD 46 cited

Minister for Immigration & Multicultural Affairs v WABQ [2002] FCAFC 329 followed

WACG v Minister for Immigration & Multicultural Affairs (2002] FCAFC 332 followed

WAED v Minister for Immigration & Multicultural Affairs [2002] FCAFC 333 followed

WAEI v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 334 followed

WACH v Minister for Immigration & Multicultural Affairs [2002] FCAFC 338 followed

WAJB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W402 OF 2001

FRENCH J

22 NOVEMBER 2002

PERTH

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant is to 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

Introduction

1                     The applicant was born on 21 March 1957 in Damascus in Syria.  He is of Palestinian origin but has no nationality.  He describes himself as “stateless”.  He arrived in Australia without lawful authority on 23 December 2000.  He was accompanied  by his wife and two children, then aged 11 and 9 years respectively.

2                     On 31 December 2000, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  The application included his wife and children.  On 5 June 2001, the application was refused by a delegate of the Minister for Immigration and Multicultural Affairs.  On 8 June 2001, the applicant and his family sought review of that decision by the Refugee Review Tribunal.  On 24 August 2001, the Tribunal affirmed the decision not to grant protection visas.  An application for review of the Tribunal’s decision was filed in this Court on 30 August 2001.  The application was amended by leave of the Court on 10 June 2002 at which time it was heard.

3                     The application raised grounds of want of jurisdiction on the part of the Tribunal and error of law.  It was a particular of the latter ground that the applicant, being a stateless Palestinian outside the protection of the United Nations Relief and Works Agency (UNRWA), was automatically entitled to protection under the Refugee Convention.  This latter proposition depended upon a reading of Article 1D of the Convention which was in  contention in other matters reserved before the Full Court of the Federal Court.  For the reasons that follow, the other grounds of review were not made out.  Judgment was deferred pending the outcome of the Full Court’s consideration of Article 1D.  A number of judgments dealing with the construction of the second paragraph of Article 1D were published on 8 November 2002.  On the basis of those decisions, as appears below, the submission that the applicant was automatically entitled to be treated as a refugee by virtue of Article 1D must be rejected. 

Applicant’s Claims and Evidence

4                     In support of his application for a protection visa, the applicant provided a statement in which he said he was born in Damascus in Syria.  His father was born in Safad, Palestine.  He had fled there in 1948.  The applicant is registered with UNRWA.  However he did not live in a camp.

5                     The applicant said that he did military service in the Palestinian Liberation Army from 1979 until 1982.  In July 1982, he was called back for the Reserves.  At this time there was war in Lebanon and Israeli forces were entering that country.  According to the applicant’s account, in January 1983 while still in military service, he was heading back to his barracks following twenty-four hours leave.  He missed a military bus and had to catch a civilian bus.  He got off the bus at the point on its route closest to his base.  He started to walk.  He told the Tribunal that it would normally take him forty-five minutes to walk from the bottom of the mountain to the top where his base was located.  On the occasion in question it was snowing and the markers used as a guide were covered in snow.  He became lost.  He was in company with another soldier.  Ordinarily everyone who was late returning from leave would either receive extended service or be deprived of the following twenty-four hour leave. 

6                     Having lost his way the applicant reached a Syrian outpost.  He sought refuge there and was able to change his clothes and get something to eat.  He explained to the Syrian soldiers that he was from the Palestinian Liberation Army, was late returning and had become lost.  They said they would show him how to get back to his base.  About half an hour later however, some armed persons in civilian dress arrived and he and another soldier who had been with him were blindfolded and taken handcuffed to an Intelligence Service office in Damascus.  There he was interrogated about the fact that he had come from the direction of Israel.  He told his interrogators what had happened.  He said he was initially tortured and beaten on suspicion of being an Israeli spy.  After twelve or thirteen days his captors made inquiries about him in the neighbourhood.  The questioning then changed and he was asked whether he was opposed to the Syrian regime.  According to the applicant he was questioned for more than two months, although not continuously.  He was kept in detention overall for about two years until the end of 1984.  He said he was released because his younger brother who is also a plumber, had a work contract with the Deputy Head of the Intelligence Branch and had spoken to this person about the applicant.  Eventually he secured the applicant’s release.

7                     Thereafter the applicant took up his normal life and occupation and had no problems until fifteen years later.  In October 2000, as part of his duties as an aluminium fabricator and plumber, he had a part-time maintenance contract for the Military Officers’ Club.  On that day he was heading to the Club when he was approached by Political Intelligence Security Officers.  They asked him for his Identification card which he showed them.  At the time there had been some demonstrations outside the US Embassy by some Palestinians and Syrians.  The applicant was not a part of any of those.  He said he was not questioned or informed of anything but just forced into a car by the Intelligence Officers.  They took him to a security office and kept him for two weeks.  He was tortured, beaten and handcuffed.  Fortunately, he said, he knew an officer in the Intelligence Department.  His wife was anxious and worried about him because he had not returned home.  She contacted the person in the Intelligence Office whom the applicant knew.  That officer asked to see the applicant and found out, in the course of his inquiries, that the applicant was still on file as being a spy for Israel in 1983.  According to the applicant, the officer asked the person in charge of the Intelligence Branch if the applicant could be released.  This was agreed. 

8                     In his statement in support of the protection visa the applicant said that his release was on condition that he departed Syria straight away.  Subsequently, however, he told the Tribunal that this was not the case but that he was advised to leave.  According to the applicant if he were returned to Syria his file would come to the attention of the authorities and he would be seen to be anti-regime.  The Syrian authorities would allow anyone to return but his file would be opened again. 

9                     In addition to the applicant’s own statement, his adviser provided the Tribunal with a submission setting out the applicant’s claims and referring in detail to a report from Amnesty International about Palestinians in Syria.  The Tribunal referred to country information about, inter alia, the position of Palestinians in Syria. 

The Tribunal’s Findings and Reasons

10                  The Tribunal accepted that there had been an incident in 1983 when the applicant had become lost while returning from his leave and that he was questioned about what he was doing and why he was where he was.  It did not consider that he was thought to be an Israeli spy for any significant period of time.  His account to the Syrian military and intelligence would have been easy to verify.  It did not make sense to the Tribunal that the intelligence people would beat and torture the applicant as a result of a suspicion that he was an Israeli spy without making checks first which would have verified his account.  It also did not make sense to the Tribunal that having shifted their focus from his being a spy to being anti-government, they would then have detained him for a period of two years.  The Tribunal found the applicant to have exaggerated his period of detention.  However, even if it were wrong in that respect it was noted that he was able, at the end of his detention, to set up his business and work without any problems for the next fifteen years.  This did not indicate to the Tribunal that he was considered by the authorities to be either an Israeli spy or anti-government.

11                  The Tribunal did not consider that it would have taken two weeks for the authorities to check the applicant’s claimed reason for being in the vicinity of the Military Officers’ Club. It would not have been necessary to beat and torture him. The Tribunal did not accept that this had occurred.  It considered that even if the applicant had been detained by a patrol checking identities in 2000, it was the first time that such an event had occurred.  When compared to his previous fifteen years without problems, it seemed to the Tribunal to have been a one off incident.  This incident did not support any proposition that there was a real chance the applicant would face persecution on his return to Syria.

12                  The Tribunal did not accept that he would be seriously considered as an Israeli spy or even that some anti-government attitude in 1983 would cause him problems now particularly given his long work history.  The Tribunal found that if the applicant were returned now the events of 1983 would not lead him to face a real chance of persecution.  Similar reasoning was applied in relation to his alleged detention in October 2000.  Even if detained, he had been released and the Tribunal considered that the circumstances he had related of being in the wrong place, at the wrong time, would not lead to authorities having any ongoing interest in him.  The Tribunal concluded that there was no real chance that the applicant would face persecution simply for being a Palestinian if returned to Syria.

The Amended Application

13                  The grounds of review as set out in the amended application are as follows:

“1.       The Tribunal did not have the jurisdiction to make the decision: s 476(1)(b).

Particulars

            (a)        In determining whether the Applicant had a well-founded fear of persecution the Tribunal ignored and/or failed to make findings on significant events pertaining to the Applicant’s claim of a well-founded fear of persecution on return to Syria, being significant events which the Tribunal was bound to take into account, namely:-

                       (i)         his long period of detention commencing in 1983 on accusations of being an Israeli spy, and then, of being against the governing regime in Syria;

                       (ii)        his arrest and detention in October 2000 while a demonstration outside the US Embassy was being dispersed;

                       (iii)       the means of his release from detention in October 2000;

                       (iv)       his file record with Syrian security authorities;

                       (v)        his departure from Syria with the assistance of a smuggler;

                       (vi)       his application for asylum in Australia.

            (b)       The Tribunal erred in law in determining whether the Applicant had a well-founded fear of persecution and whether Australia had a protection obligation to the Applicant.  The particulars at paragraph 1(a) above and paragraph 2 below are relied on in support of this.

            (c)        Further to 1(a) and 1(b) above, the Tribunal’s exercise of power was thereby affected, its statutory power exceeded, it did not have jurisdiction to make the decision.

2.         The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal: s 476(1)(e).

Particulars

            (a)       The Tribunal did not correctly interpret and apply the law that requires the Tribunal to consider past events in determining whether the Applicant had a well-founded fear of persecution on return to Syria.  The Tribunal excluded past events from consideration on the basis of fragile and unreasoned assumptions and inclinations unsupported by probative material and made no clear findings that permitted the Tribunal to disregard the Applicant’s claims of:

                       (i)         his long period of detention commencing in 1983 on accusations of being an Israeli spy, and then, of being against the governing regime in Syria;

                       (ii)        his arrest and detention in October 2000 while a demonstration outside the US Embassy was being dispersed;

                       (iii)       the means of his release from detention in October 2000;

                       (iv)       his file record with Syrian security authorities;

                       (v)        his departure from Syria with the assistance of a smuggler;

                       (vi)       his application for asylum in Australia.

            (b)       The Tribunal did not correctly interpret and apply the law that requires the Tribunal, where there is uncertainty about the occurrence of events, to consider whether the Applicant faced a real chance of Convention based persecution on return to Syria and to evaluate that chance:-

                       (i)         on the whole of the Applicant’s claims;

                       (ii)        on the cumulative effect of all relevant circumstances;

                       (iii)       without excluding all speculation as to the likelihood of future persecution.

            (c)        Further and alternatively, the Tribunal made a finding that the Applicant was covered by UNRWA and does not receive any services from UNRWA, but did not correctly interpret and apply paragraph 2 of Article 1D of the Convention, which provides that departure from the UNRWA area of operation automatically entitled the Applicant to Convention protection as a refugee under Article 1A of the Convention.

3.         The decision was not authorised by the Act or the Regulations: s 476(1)(c).

Particulars

            The particulars at paragraphs 1 and 2 above are repeated in support of this ground.”

Statutory Framework

14                  The application for review having been filed on 30 August 2001, the Court's jurisdiction arises from s 486 of the Migration Act 1958 (Cth) as it stood then and prior to the significant amendments effected by the Migration Legislation (Judicial Review) Act 2001 (Cth) which came into effect on 2 October 2001.  The grounds of review available at the time were those defined in s 476 of the Act which relevantly provided:

"476(1)  Subject to subsection (2), application may be made for review by the Federal  Court of a judicially-reviewable decision on any one or more of the following grounds:

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(b)       that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)        that the decision was not authorised by this Act or the regulations;

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.

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

Want of Jurisdiction to Make the Decision

15                  It was submitted that the Tribunal had made no clear findings about the claimed occurrence of the 1983 and 2000 detentions and no finding on the claimed means of release from the latter detention.  Its findings on the alleged retention of a file record on the applicant by the Syrian authorities were said to be based on inclinations and assumptions and not on probative evidence.  The Tribunal was also said to have made no findings about the applicant's departure from Syria and the effect of his application for asylum in Australia.

16                  The passage from the Tribunal's reasons relating to the first detention, relied upon by the applicant and set out in the submissions filed on his behalf, was in the following terms:

"The Tribunal accepts that in 1983 the applicant was returning from twenty four hours leave when he missed the bus at 7am and had to catch the civilian bus.  The Tribunal accepts that he left this bus to walk for forty five minutes to the top of the mountain where his base was but became lost on the way.  The Tribunal accepts that he stumbled on a Syrian post after he lost his way.  It is plausible in such circumstances that the applicant would be questioned as to what he was doing and why he was where he was.  However the applicant’s account would have been easy to verify.  As a result the Tribunal does not accept that the applicant was considered to be an Israeli spy for any significant period of time.  Whilst the Tribunal notes that the applicant claimed it was twelve or thirteen days before the authorities shifted their focus from his being a spy to being anti government, the Tribunal does not accept it would have taken such a period of time to verify his account.  It also does not make sense to the Tribunal that they would beat and torture him as a result of a suspicion that he was an Israeli spy without making checks first which checks would have verified his account.  It also does not make sense to the Tribunal that having shifted their focus from his being a spy to being anti-government that he would then be detained for a period of two years.  As a result the Tribunal considers that the applicant has exaggerated his period of detention.  The Tribunal would have expected from his account that he would have been detained for a short period only.

However even if the Tribunal is wrong about its finding in relation to his period of detention, the applicant was able at the end of it to set up a business and work without any problems for the next fifteen years.  His ability to do this does not indicate to the Tribunal that the applicant was considered by the authorities to be either an Israeli spy or anti-government.”

17                  It is plain enough from the preceding passage that the Tribunal did not accept the applicant's account of the sequelae of what it called the 1983 incident.  It did not accept that he was beaten and tortured or that he was detained for two years.  The Tribunal was not obliged to make positive findings about this detention and the reason it occurred.  The Tribunal had not accepted those aspects of the applicant's account of this incident which might have supported the existence of an ongoing well-founded fear of persecution for a Convention reason at the time of the hearing before the Tribunal.  Such uncertainties as emerged from its reasons in this respect were subsumed by its conclusion that, in any event, having regard to the applicant’s subsequent and problem free fifteen years operating a business in Syria, he was not considered to be either an Israeli spy or anti-government. 

18                  The mode of reasoning adopted by the Tribunal in respect of the first claimed detention, is unexceptional.  It is open to the Tribunal to determine, without accepting a claim advanced by an applicant, that even if accepted it would not support a well-founded fear of persecution for a Convention reason. 

19                  It is said that the Tribunal did not make a clear finding on the basis of probative evidence rejecting this significant past event and that it was required to put the event in the balance with others in assessing the risk of persecution on return to Syria.  This kind of criticism invites the Court to engage in merits review.  The same is true of the suggestion that the Tribunal has disregarded country information about detention without trial for long periods for political reasons in Syria.  This appears to have been a reference to country information submitted by the applicant’s advisers in a letter dated 12 July 2001.  That letter referred to an Amnesty International Report of 1999 which indicated that thousands of Palestinians have been held in Syria since the 1960s for political reasons, albeit the majority were released in Presidential amnesties in 1991-92.  It was referred to by the Tribunal when it said:

“The applicant’s adviser provided the Tribunal with a detailed submission setting out the applicant’s claims and referring in detail to a report from Amnesty International about Palestinians in Syria.  Amnesty’s report refers to thousands of Palestinians being held in Syria for political reasons from the 1960s with most being released in amnesties in 1991/1992.”

The Tribunal went on to refer to more recent information about the country situation provided by the applicant’s advisers and further country information apparently derived from its own sources.  That was a United States Department of State Country Report for 2000 and advices from the Department of Foreign Affairs and Trade.  Reference was also made to a report from Reuters News Service of 15 January 2001.  The fact that the Tribunal did not specifically refer to that aspect of the country information in its findings and reasons, does not expose any jurisdictional error. 

20                  In relation to the second incident of detention in 2000, the submissions on behalf of the applicant cited the following passage from the Tribunal’s reasons:

"The applicant claimed that in October 2000 whilst going to do some work at the Officers Club he was detained.  It is possible that the applicant was in the wrong place at the wrong time and was detained.  However again the Tribunal considers it would not have taken two weeks for the authorities to check his account and check that he had a contract at the Officers Club where he was heading.  Again the Tribunal considers that checks would have revealed his bona fides which means that it would not be necessary to beat and torture him and so the Tribunal does not accept that this would have occurred.  The Tribunal also does not accept that on this occasion the authorities would have taken any particular notice of his prior detention in 1983, if this occurred, as it was so long ago.

More importantly the Tribunal considers that even if the applicant was detained at a patrol checking identities in 2000 this was the first time that such an event had occurred and when compared to his previous fifteen years without problems appears to the Tribunal to have been a one off incident.  Indeed when this was suggested to the applicant at the hearing he appeared to agree with it.  So even if the applicant was unfortunate enough to be detained at an identity check in October 2000, the Tribunal considers that the circumstances in which it arose and the fact that he had not been detained in this way before indicates that it was a once only incident, albeit an unfortunate one.  As a result, even if the applicant was detained in 2000 near a demonstration, the Tribunal does not accept that it indicates there is any real chance the applicant will face persecution should he now return to Syria."

21                  It was said not to be clear from this statement what was the Tribunal’s finding on the 2000 detention and whether it had accepted or rejected the claim that the applicant was detained by the Syrian security authorities.  The Tribunal again approached this aspect of the applicant’s claims on the basis that even if his apprehension and detention had occurred as claimed, it was an isolated incident which would not support the inference that there was any real chance that he would face persecution should he now return to Syria.  This is an approach the Tribunal was entitled to take. 

22                  In relation to the applicant’s release from the asserted detention in 2000 it was said that the Tribunal made no finding.  It was submitted for the applicant that the claim he had obtained release from detention by procuring a member of Syrian intelligence to engage in subterfuge and manipulation of the system was clearly a significant one in determining whether he was at risk of persecution on his return to Syria.  The Tribunal’s failure to make a finding on the matter was said to be indicative of its failure to properly understand its task and the application of the law on a well-founded fear of persecution which would require it either to clearly reject a past event on the basis of probative evidence or to consider it “in the balance with others” in assessing risk of persecution on return to Syria.  It was not explained from these submissions how the circumstances of the applicant’s release would support an inference of a well-founded fear of persecution for a Convention reason.  This aspect of the grounds of review discloses no error.

23                  The applicant’s submissions on the file held on him by Syrian security authorities referred to the Tribunal’s finding in this respect which was in the following terms:

“The Tribunal notes that the applicant has claimed that his return will mean that his file will be opened and this will lead to problems.  Firstly the country information above indicates that Syria will accept the return of Syrian Palestinians.  In this regard the Tribunal notes that the applicant is covered by UNRWA even though he does not live in a refugee camp and does not receive any services.  He agreed in the hearing that the Syrian authorities would not stand in the way of his return.  In relation to his file being opened and his past discovered, the Tribunal does not accept that any of the events of 1983 would lead to the authorities having an interest in him.  The Tribunal does not accept that they would seriously consider him an Israeli spy.  The Tribunal also does not accept that some anti-government attitude in 1983 would cause him problems now particularly given his long work history.  The Tribunal finds if he returns now the events of 1983 will not lead to him facing a real chance of persecution.  The Tribunal also considers that similar reasoning applies in relation to his alleged detention in October 2000.  Even if he was detained, he was released, and the Tribunal considers that the circumstances he has related of being in the wrong place at the wrong time and his explanation for being there, that is to go to work at the Officer’s Club, would not lead to the authorities having any ongoing interest in him.  Even if his return causes the authorities to look at his past, the Tribunal is satisfied that there is no real chance he will face persecution for a Convention reason should he now return.”

24                  The criticism here is made that the findings are based on inclinations and assumptions and not probative evidence.  The observation that, even if the applicant were detained he was released, is said completely to ignore the claims of how he obtained release.  Having regard to the Tribunal’s views of the lack of significance of the events of 1983 and 2000 in relation to a contemporary well-founded fear of persecution it is not surprising that it did not accept that if his file were opened the events of 1983 or 2000 would lead to the authorities having an interest in him.  This again is a finding of fact and does not disclose jurisdictional error or error of law.

25                  Further it was said there was no basis upon which the Tribunal could logically disregard and not make findings about the applicant’s departure from Syria and the impact of his application for asylum in Australia.  The applicant did not advance a contention that by seeking asylum he would be exposed to persecution on return to Syria.  No country information was put before the Tribunal in relation to the fate of asylum seekers in Syria.  There was no obligation therefore on the Tribunal to specifically address the hypothesis of a sur place claim.  The same is true in relation to the fact of the applicant’s departure from Syria.

26                  None of the matters relied upon in relation to want of jurisdiction, in my opinion, disclose a failure by the Tribunal to carry out its function and any competent want of authority to make the decision that it did.

Error of Law

27                  The contention that the Tribunal committed an error of law was based upon the same particulars as the contention that it lacked authority.  For the reasons that I have already indicated, those particulars disclose no error of law.  As to the second limb of the error of law ground I do not accept that the Tribunal’s failure expressly to address the “whole of the applicant’s claims” and “the cumulative effect of all relevant circumstances” discloses any error having regard to the findings that it made as to the significance of the incidents relied upon. 

Error of Law – Article 1D of the Refugee Convention – The ‘Ipso Facto’ Clause

28                  This leaves the final ground upon which error of law is asserted.  That is the Tribunal’s  failure to hold that, notwithstanding he was entitled to UNRWA protection and assistance and had removed himself from that protection and assistance, he was  automatically entitled to Convention protection as a refugee under Article 1A. 

29                  In its reasons the Tribunal said:

“The Tribunal notes that the applicant has claimed that his return will mean that his file will be opened and this will lead to problems.  Firstly the country information above indicates that Syria will accept the return of Syrian Palestinians.  In this regard the Tribunal notes that the applicant is covered by UNRWA even though he does not live in a refugee camp and does not receive any services.”

30                  Counsel for the applicant argued that, on the proper construction of the second paragraph of Article 1D of the Convention, any entitlement the applicant might have had to protection or assistance from UNRWA ceased on his departure from its area of operation.  The effect is, therefore, that he is not receiving and is not entitled to receive the protection or assistance of the agency.  On that basis it is said he is not excluded from the protection of the Convention and falls automatically for Convention protection without screening under Article 1A(2).  This construction of paragraph 2 of Article 1D is said to be supported by academic commentators – Grahl-Madsen, The Status of Refugees in International Law, 1966 Vol 1 at 141-142 and 264-265; Goodwin-Gill, The Refugee in International Law, 1996 Vol 1 at 1592.

31                  It was submitted that it was the intention of those who drafted the Convention that Palestinians entitled to UN protection or assistance and individual Palestinians who might find themselves beyond the area of the UN agency’s jurisdiction were to have the heightened protection of automatic refugee status under the Convention.  This did not mean that benefits would go to those who did not need them.  The argument, which was based on travaux preparatoires, is that Palestinians who have no state and are without repatriation and compensation for the loss of homelands were considered a special case for heightened protection at the time that the Convention was drafted.  In the Australian context, s 36 of the Migration Act and the requirement that a person be without effective protection elsewhere before the Article 33 non-refoulement obligation is engaged, prevent individual Palestinians from gaining an unwarranted protection obligation from Australia.  It was put that the decision to the contrary of Carr J in Al-Khateeb v Minister for Immigration & Multicultural Affairs (2002) 67 ALD 46 should not be followed.  No judgments have adopted the propounded construction of paragraph 2. 

32                  It is useful in this context to review the relevant terms of the Refugee Convention.  Article 1A of the Convention provides:

"1A.    For the purposes of the present Convention, the term "refugee" shall apply to any person who:

            (1)        Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization.

            Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;

            (2)        As a result of events occurring before 1 January 1951 and 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.

            In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national." 

33                  Article 1D provides:

"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."

34                  The non-refoulement obligation is created by Article 33 which provides:

"1.  No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2.  The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

35                  In a previous decision unrelated to the present matter, I held that Article 1D does not 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 or her home region even if that region is within the territorial competence of UNRWA.  That decision was appealed to the Full Court which, at the time of the hearing of this application, had reserved its decision. In this case, the arguments put for the applicant also assert that the applicant, no longer being under the protection of UNRWA, is automatically entitled to be treated as a refugee under the Convention.  This contention is based upon the second paragraph of Article 1D.  As will be seen below that matter was in fact dealt with by the Full Court on the appeal to which I have referred.  

36                  The Full Court delivered judgment in the matter to which I have referred on 8 November 2002 – Minister for Immigration & Multicultural Affairs v WABQ [2002] FCAFC 329.  The principal question raised before the Full Court related to the construction of the first paragraph of Article 1D and its interaction with historical facts as to which certain findings had been made (erroneously, as the Full Court held) by the Tribunal. 

37                  The Court also addressed the operation of the second paragraph of Article 1D. As to that, Hill J said at [69 subpar 6.]:

“It can be accepted that the Latin ‘ipso facto’ conveys the meaning ‘by the very fact’.  That is the meaning attributed to it in the Shorter Oxford English Dictionary, 3^rd edition.  But the question is rather what, by the very fact of protection or assistance ceasing, is contemplated to happen.  The answer which the second paragraph gives to the question is that the person becomes entitled to ‘the benefits’ of the Convention.  It is not that the person is deemed to be a refugee.  The benefits of the Convention are those benefits, such as the non-expulsion provisions of Article 32 and the non-refoulement provisions of Article 33.  But those benefits are available only to those persons who are refugees.  They are not available to anyone else.”

Moore J found it unnecessary to decide the question given that the appeal turned on the first limb of Article 1D.  Tamberlin J said at [172]:

“A further question in relation to the second paragraph is the meaning of the expression ‘ipso facto’ being entitled to the benefit of the Convention.  I agree with the conclusion of Carr J in Jaber [Jaber v Minister for Immigration and Multicultural Affairs [2001] FCA 1878] that the better view is that the expression ‘ipso facto’ does not require a conclusion that upon cessation of protection or assistance, an applicant becomes automatically entitled to protection as a ‘refugee’ without satisfying the definition of ‘refugee’ under the Convention.  Essentially, the protection of the Convention is provided in Article 33 which refers to a ‘refugee’.  The entitlement of a refugee is not to be sent to a country where he or she would be persecuted for a Convention reason.  In this case because the respondent has established that he is a ‘refugee’ within the definition, it follows that if he comes within the second paragraph he is entitled to the protection of the Convention.”

The views expressed by Hill and Tamberlin JJ on the second paragraph of Article 1D were applied by all of their Honours, sitting as the Full Court, in a number of other judgments handed down on 8 November 2002; WACG v Minister for Immigration & Multicultural Affairs (2002] FCAFC 332; WAED v Minister for Immigration & Multicultural Affairs [2002] FCAFC 333; WAEI v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 334 and WACH v Minister for Immigration & Multicultural Affairs [2002] FCAFC 338.

38                  I am bound to apply the construction of the second paragraph of Article 1D enunciated in those recent decisions of the Full Court.  In the result, the last particular of error of law relied upon, depending as it does upon the contrary construction of the second limb of Article 1D must fail.

The Applicant’s Written Submission to the Tribunal

39                  An affidavit filed by counsel for the applicant in these proceedings exhibited a transcript of portion of the proceedings before the Tribunal and a written submission which, the applicant told counsel he had prepared and addressed to the Tribunal.  The applicant told counsel that he sent a copy of the submission to the Court because although he had forwarded the document to his migration agent about ten days before the Tribunal hearing it was evidently not sent to the Tribunal as it did not appear in the Court Book.  Counsel said she had been unable to make contact with the migration agent who had acted for the applicant in the Tribunal proceedings.  The question was whether the document was on the Tribunal’s file and before the Tribunal. 

40                  At the end of the hearing I made a direction that:

“The Australian Migration Program and Investments do inform the Court on Affidavit on or before 1 July 2002 whether a copy of any submission prepared by the Applicant and sent to them prior to the Tribunal hearing of his application was provided to the Tribunal.”

41                  An affidavit was sent to the Court on 28 June 2002 sworn by Florin Burhala, the migration agent who had prepared a typed thirteen page submission to the Tribunal on 12 July 2001.  The migration agent said:

“2.       I cannot remember this file in particular given the time that has passed since handling this file.  To the best of my knowledge, from reviewing the file, the applicant’s hand written submission would have been attached to the typed submission and sent to the Tribunal and a copy to the client.

3.         According to the mail book of AMPI Australian Migration Program and Investments this submission was sent to the Tribunal on the 17^th July 2001.  Annexed hereto and marked exhibit FB1 is a true copy of the AMPI mail book extract.”

The agent could not however remember sending the submission of the particular client with the typed submission but said, “… given the procedures in place at that time, which were followed very strictly I can say that it is very likely that the applicant’s submission was sent together with the one prepared by me”. 

42                  A copy of this affidavit was not seen by the Australian Government Solicitor’s office until 4 October 2002.  An affidavit was then sworn by Ms Ling, a solicitor employed by the Australian Government Solicitor.  She was informed by her instructor from the Department of Immigration, Multicultural and Indigenous Affairs and believed that a search of the Refugee Review Tribunal file had been conducted and that her instructor had not been able to locate the applicant’s hand written submissions.  Ms Ling said she had also conducted a similar search of the Tribunal file with the same result. 

43                  On 10 October 2002, she faxed a copy of the submissions to the Tribunal and requested that a search be undertaken to ascertain whether they had been received by the Tribunal and if they were, the date they were received and whether they were provided to the Tribunal member prior to the making of the decision.  On 11 October she was informed by a legal and litigation officer from the Tribunal that a search of the Tribunal files had not yielded a copy of the submissions.  Moreover there was no record in the Tribunal’s inward mail register book of the submissions having been received by the Tribunal. 

44                  It was submitted on behalf of the Minister, by way of supplementary submission, that the Court should find that the handwritten submissions were not received by the Tribunal.  Counsel for the applicant, Ms Price noted that the affidavit of Mr Burhala was inconclusive on whether the handwritten submission was received by the migration agent and forwarded to the Tribunal.  The applicant said he had sent it from Curtin Detention Centre to the migration agent about ten days before the Tribunal hearing.  The Tribunal hearing was on 17 August so this would have put the date of forwarding of the written submission at 7 August.  The migration agent’s typed submission was sent to the Tribunal on 17 July and received there on 19 July 2001.  Counsel for the applicant accepted that evidently the applicant’s handwritten submission despatched to the migration agent on or about 7 August 2001 had gone astray and did not find its way to the Tribunal either before or after the hearing and was not available for consideration by the Tribunal member at the time he made his decision.  She accepted that as a result no question of reviewable error by the Tribunal would arise for determination by the Court in relation to the handwritten submission.

45                  I agree that it appears that if the handwritten submission did not reach the Tribunal then it was the fault of either the applicant or the applicant’s migration agent.  In the event there is no reviewable error arising out of a failure to consider the handwritten submission.

Conclusion

46                  For the preceding reasons, the application will be dismissed with costs. 

Acting Associate:

Dated:              22 November 2002