W236 v Minister for Immigration & Multicultural Affairs [2001] FCA 1593

FEDERAL COURT OF AUSTRALIA

W236 v Minister for Immigration & Multicultural Affairs [2001] FCA 1593

MIGRATION - refugee - protection visa - stateless Palestinian resident in Syria - illegal departure from Syria - whether risk of persecution upon return by reason of illegal departure and Palestinian ethnicity - whether Tribunal addressed that question - Tribunal sufficiently addressed question - no reviewable error found - application dismissed. Migration Act 1958 (Cth) Minister for Immigration and Multicultural Affairs v Quiader [2001] FCA 1458 W236 v MINISTER FOR IMMIGRATION AND MULTCULTURAL AFFAIRS W236 OF 2001 FRENCH J 9 NOVEMBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W236 OF 2001

BETWEEN: W236

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 9 NOVEMBER 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application be 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.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W236 OF 2001

BETWEEN: W236

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 9 NOVEMBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT Introduction 1 The applicant, who describes himself as Palestinian, was born in Syria on 20 March 1976. On 28 October 2000, he arrived in Australia by boat without lawful authority. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("DIMA") on 16 November 2000. A delegate of the Minister for Immigration and Multicultural Affairs made a decision on 9 January 2001 refusing the grant of a protection visa. On 11 January 2001, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision. The Tribunal heard oral evidence from the applicant on 21 March 2001 and on 28 May 2001 affirmed the delegate's decision not to grant a protection visa. The applicant lodged an application for review of the Tribunal's decision in this Court on 13 June 2001. The Applicant's Claims in Support of his Application 2 In support of his application for a protection visa, the applicant provided a written statement the substance of which was as follows: 1. The applicant was born in Syria in 1976 in Alyarmouk Refugee Camp. He has six siblings all but one of whom is living in Syria. He is unmarried. His father is deceased and his mother is still in Syria. His ethnic group is Arab and his religion is Muslim Sunni. 2. The applicant is a member of a faction of the Palestinian Liberation Organisation known as the Abu Ammar Fatah. 3. In January 2000, in conjunction with other people, he formed a secret organisation within Syria. Its aim was to raise awareness among Palestinian refugees, to support peace talks and to stop further bloodshed. 4. Five members of the organisation were arrested by Syrian intelligence in March 2000. Two months later Syrian intelligence agents began harassing the applicant. He was unable to stay home and had to use a false student card to avoid being arrested. 5. Following the death of President Assad and an intensification of security measures in Syria, members of the Fatah Organisation who had been arrested many years before and released were tracked down and rearrested. On 6 October 2000 the applicant's mother told him that there was a number of intelligence officers waiting near their home to arrest him. When they could not find him there they went to his maternal uncle's house and the following day to his girlfriend's house looking for him. 6. The applicant decided to leave Syria and went to the Arkarmal travel agency at Yarmouk Refugee Camp. He bribed officials to obtain a Palestinian refugee travel document. 7. On 12 October 2000, the applicant went to Damascus airport together with the travel agent who had arranged for his documents. He flew to Indonesia via Dubai, Kuala Lumpur and Singapore. He made arrangements with a people smuggler and travelled to Surabaya under a false name and thereafter to Lambug. Subsequently he boarded a boat to Australia. The trip to Australia cost him $US6,000 which he financed out of his savings. He feared that if returned home he would be imprisoned for ten to fifteen years with brutal torture by Syrian authorities. 8. He believed that he would be harmed or mistreated if returned to Syria because he had used false travel documents. Before he left Syria he was wanted by the authorities and believed that they would harm him if he were arrested. He knew many members of the Fatah Organisation who were arrested by Syrian authorities and had no doubt that they would do the same thing to him if he were to go back. 9. He did not believe that the authorities would protect him. The Syrian government had never protected Palestinians. It would never protect anyone suspected of being a member of the Fatah Organisation. The Tribunal's Findings 3 The Tribunal's reasons were, in parts, a little difficult to follow particularly in its discussion of the evidence. But the Tribunal, despite its designation, is not a court. It is an executive agency which takes its place in the continuum of administrative decision-making relating to the grant of protection visas. It is not therefore appropriate to read its reasons as deficient for failing to meet the standards expected of reasons for a judicial decision. 4 In summary the Tribunal's findings were: 1. Article 1(D) of the Convention did not apply to exclude from consideration for refugee status an applicant registered with the United Nations Relief and Works Agency ("UNRWA")if the applicant were outside its geographic area of operation. 2. The Tribunal was not satisfied that the applicant was a member of a secret Fatah group or that members of his cell were arrested in March. Nor was it satisfied that Syrian authorities visited his home in October 2000 or, as he later claimed, March, April and May 2000, or at any other time. 3. The applicant would be able to obtain a travel document and return to Syria as he was in possession of a valid UNRWA registration card in his own name. 4. As the applicant had failed to comply with normal departure procedures and broken Syrian law, he would face a criminal penalty if returned. However the penalty would result from the non-discriminatory enforcement of a law of general application. There was no basis for believing that the law would be imposed in a discriminatory way for a Convention related reason. 5. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. The Amended Grounds of Application 5 The grounds of the application as filed did not disclose any basis for review. The applicant, however, was represented by Mr CB Edmonds SC on a pro bono basis. Mr Edmonds filed amended grounds of application which were in the following terms: "1(1) The decision of the Refugee Review Tribunal that Australia did not owe the applicant protection obligations involved an error of law in that it did not consider the issue of the Syrian government's treatment of him upon his forced return, such being an error involving an incorrect interpretation of the applicable law (s 476(1)(e)). (2) The applicable law required the Tribunal to consider that issue in that it required the Tribunal: (a) to review the decision of the Minister, that decision itself requiring the Minister to consider a valid application and to have regard to all the information in the application including information subsequently provided; (b) upon the evidence and information before it to determine for the purposes of s 36(2) of the Migration Act whether Australia had protection obligations to the applicant as a "refugee" as described under the Refugees Convention and Refugees Protocol as those terms are defined in s 5(1). 2 The decision of the Tribunal and its failure to consider such issue involved an error of law being a jurisdictional error in: (1) failing to identify and ask and answer the correct questions; (2) ignoring relevant material; and it thereby (3) acted without jurisdiction (s 476(1)(b)); (4) made a decision not authorised by the Act (s 476(1)(c). 3 The Tribunal in reaching such decision ignored relevant material and thereby failed to observe the required procedures in connection with the making of its decision (s 476(1)(a)). PARTICULARS OF GROUNDS 1 - 3 (1) The Tribunal correctly found that the applicant was a stateless person who by bribing a Syrian official and obtaining a false travel document had illegally departed Syria; (2) The Tribunal failed to consider and find that: (a) the applicant's so obtaining a false travel document, (b) his illegal departure from Syria, (c) his travelling to, remaining in and application for protection in Australia on the stated grounds, (d) in the event of his forced return, his likely mistreatment on the grounds of his being a Palestinian, gave rise to his having a well founded fear of prosecution by reason of his race, nationality, political opinion or membership of a particular social group. (3) In that respect the Tribunal failed to have regard to the applicant's evidence that: (a) he did not believe that on his return the Syrian authorities would protect him because he was a Palestinian; (b) if he returned he would be arrested and if he was he would "disappear" for 10-15 years; (4) In that respect also the Tribunal failed to have regard to the country evidence: (a) that Palestinians who sought protection might be regarded as having made negative claims or statement which could attract the attention of the Syrian authorities; (b) that given his illegal departure, he would most likely face some form of mistreatment or detention; (c) that the sentence would likely be 3 months of imprisonment and a fine from 500-1500 pounds; (d) of Syria's appalling human rights record and the evidence of the treatment of Palestinians in Syria's prisons." The Issues 6 Senior counsel for the applicant said in oral submission to the Court that there were two bases upon which the visa application was brought. The first was that the applicant would face persecution for political reasons upon return to Syria. The second was that he would face persecution on the basis that he had departed Syria illegally. Counsel conceded that the first matter had been dealt with comprehensively by the Tribunal and could not be the subject of review before this Court. On the second matter, however, namely, the risk to the applicant arising out of the fact of his illegal departure from Syria, it was said the Tribunal failed to address the issue at all and in reaching the conclusion that it did in relation to it had misinterpreted the law so that there was an error of law for the purposes of s 476 of the Migration Act 1958 (Cth). The Risk of Persecution upon Return - Whether Exposed on the Materials 7 The risk of persecution for having left Syria using a false document would not of itself disclose a ground for refugee status under Article 1(A) of the Convention. It was submitted, however, that it was on account of his ethnic origin as a Palestinian that the applicant would be persecuted for his illegal departure if returned to Syria. The Court was taken to the materials before the Tribunal to demonstrate that the issue of such a risk upon return of the applicant to Syria was properly exposed. 8 In the initial interview following his arrival in Australia, the applicant was asked about the details of the passport he used to travel en route to Australia. He was recorded as saying it was document similar to a passport issued by the Syrians. Asked if it was genuine he said it was not in his name and that he had paid $1,500 to a person he thought to be a Palestinian smuggler at the camp. Asked why he did not wish to return to his country of residence, he said: "The reason is if I return I will get arrested and if I get arrested, you will disappear God knows until when - 10/15 years." In his statement in support of the application for a protection visa, the applicant said he believed that he would be harmed or mistreated if he returned to Syria because he had used false travel documents. He did not believe that the Syrian authorities would protect him because he was Palestinian. It was submitted that his reference to having used false travel documents reflected a self-contained ground for his application for a visa. Indeed the applicant's case in this respect was said to be encapsulated in two paragraphs (12 and 13) of his statement supporting the application for a protection visa which referred to his fear of mistreatment upon return and the fact that his Palestinian origin meant that he would not be protected against harm or mistreatment by the Syrian government. Counsel put it thus: "He is a Palestinian who because of his illegal departure and his questioning will come to the attention of the Syrian authorities and because he is a Palestinian he will receive a treatment which is inhumane." 9 In the delegate's reasons for decision, reference was made to country information including the US State Department's Country Report on Human Rights Practices for Syria in 1999. The passage quoted from that report in the delegate's decision referred to the powerful role of the security services in the Syrian government. In particular it stated: "The branches of the security services operate independently of each other and outside the legal system. Their members commit serious human rights abuses…The human rights situation remained poor, and the Government continues to restrict or deny fundamental rights although there was continued marginal improvement in a few areas." 10 The Court was asked to read this country information in conjunction with advice from the Department of Foreign Affairs and Trade given in 1997 which was referred to in the delegate's reasons and which stated: "We have no reason to believe that applying for a Protection Visa would in itself be cause for harm from the Syrian authorities. The actions of the Syrian authorities are far more likely to depend on the factors which presumable (sic) led the applicant to flee Syria initially. A possible exception might be if the applicant were a senior government or military official who wanted to defect." 11 Counsel for the applicant also took the Court to the submissions made on the applicant's behalf to the Tribunal by the applicant's then migration agent. There it was said: "From the country information and our client's claims it is submitted that the Tribunal should accept that our client having left Syria illegally, will at the very least be questioned by the authorities on his return to Syria, assuming that he is allowed to return (noting DFAT remarks). The independent evidence on the current regime in Syria suggests there has been no change in its harsh treatment of suspected political opposition. That detention in Syria may be sufficiently serious as to amount to persecution in a Convention sense and that the UNRWA cannot offer any protection." So it was said that what had been put squarely before the Tribunal was that the applicant's illegal departure from Syria was part of the reason that he sought protection in Australia. Reference was also made to information from Amnesty International that persons in Syria are persecuted by reason of their politics or their ethnic origin. 12 In its reasons for decision, the Tribunal referred to country information dealing with the return of Palestinians. There was a number of questions and answers cited, including a statement by the Documentation, Information and Research Branch of the Immigration and Refugee Board in Ottawa referring to advice by the United Nations High Commissioner for Refugees that unsuccessful Syrian asylum seekers who left their country illegally would be in principle sentenced to three months of imprisonment and to the payment of a fine. Unsuccessful Syrian asylum seekers who left their country legally should not fear any prosecution if their asylum procedure was kept totally confidential. A further document from the Department of Foreign Affairs and Trade was set out which contained a number of questions and answers relating to returned asylum seekers. These appeared at pp 13 and 14 of the Tribunal's reasons for decision and included the following: "Q.2 ARE PALESTINIANS WHO DEPART SYRIA ILLEGALLY PENALISED ON RETURN FOR ILLEGAL DEPARTURE? IF SO. WHAT IS THE PENALTY? … A.2 PALESTINIANS, OR ANYBODY FOR THAT MATTER, WHO DEPARTED SYRIA ILLEGALLY WOULD BE LIKELY TO BE PENALISED ON RETURN TO SYRIA. WE HAVE SOUGHT ADVICE FROM CONTACTS IN SYRIA ON LIKELY PENALTY. … Q.6 WHAT WOULD BE SITUATION OF SYRIAN BORN PALESTINIANS WHO ON RETURN TO SYRIA ARE KNOWN BY AUTHORITIES TO HAVE SOUGHT PROTECTION UNSUCCESSFULLY IN WESTERN COUNTRY? WOULD THEY BE OF PARTICULAR INTEREST TO AUTHORITES? A.6 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. Q,7 WHAT ARE REQUIREMENTS/PROCEDURES FOR SYRIAN-BORN PALESTINIANS TRAVELLING ABROAD OBTAINING TRAVEL DOCUMENTS - HOW LONG DOES PROCESS TAKE AND TYPE OF DOCUMENT ISSUES EG PALESTINIAN REFUGEE TRAVEL DOCUMENT AND/OR ARE THEY ENTITLED TO SYRIAN PASSPORTS? A.7 UNRWA-REGISTERED PALESTINIANS USUALLY HAVE NO DIFFICULTY IN OBTAINING A PALESTINIAN REFUGEE TRAVEL DOCUMENT. THEY ARE NOT/NOT ENTITLED TO SYRIAN PASSPORTS." Whether the Tribunal Considered the Risk to a Returning Illegal Departee by Reason of his Palestinian Origin 13 The Tribunal found that the applicant, although stateless, is a registered Palestinian refugee from Syria. The US State Department Report for 2000 supported the conclusion, according to the Tribunal, "…that he would be able to return to his country of habitual residence Syria". The Tribunal did not accept the applicant's account that he had fled from Syria to escape persecution on account of his political opinions. That finding is not canvassed here, so it is unnecessary to examine it in any detail. 14 The Tribunal also found that the applicant's claims that Syrians would pursue him upon return and that they had been harassing his family were unlikely as there were clear signs of an improvement in the relationship between Yasser Arafat and the Syrian government and therefore a decreasing likelihood of interest in Arafat's supporters in Syria. This observation was supported by reference to country information being a recent report in a Reuters Business Briefing of 5 April 2001 which stated: "Damascus has recognized the passports issued by the Palestinian National Authority [PNA] for the first time since its establishment following the Oslo agreements in 1993. This comes in the light of the reconciliation which has recently taken place between Presidents Al-Asad and Arafat on the sidelines of Amman Arab Summit in March." 15 There had been reports of arrests of Palestinians in December 1999 but the Tribunal found that "…it would appear that they were of radical Islamists and not of pro-Arafat (Fatah) Palestinians." The Tribunal in the final section headed "Findings" said: "The Tribunal finds that the applicant would be able to obtain a travel document and to return to Syria as he is in possession of a valid UNWRA registration card (f23) in his own name. As he has failed to comply with the normal departure procedures and has broken the Syrian law he would face a criminal penalty. However the penalty would result from the non-discriminatory enforcement of a law of general application and there is no basis to believe that it would be imposed in a discriminatory way for a Convention related reason." The finding in this passage, in my opinion, defeats the contention that the Tribunal did not consider whether, by reason of his illegal departure, the applicant would face discriminatory penalties by reason of his Palestinian origin upon his return to Syria. The finding is explicit that he would face a criminal penalty arising from the non-discriminatory enforcement of a law of general application. This must be read in the context of the wider observations of the Tribunal concerning the attitude of Syria towards Palestinians and, in particular, the relationship between Yasser Arafat and the Syrian government. Whether or not the conclusion is warranted by the evidence is not a matter into which this Court can inquire. However, in my opinion, the Tribunal has sufficiently addressed the issue raised by counsel for the applicant on this review. It cannot be said that it has failed to consider whether or not there was a risk of persecution by reason of the applicant's Palestinian ethnicity. 16 In the circumstances it is unnecessary for me to make any comment about the contention raised by the respondent that the Tribunal erred in its approach to Article 1(D) of the Convention. I have already made a decision in that regard which is certainly consistent with the approach taken by the Tribunal in relation to Article 1(D) - Minister for Immigration and Multicultural Affairs v Quiader [2001] FCA 1458. The respondent's contentions that the Tribunal erred in relation to Article 1(D) need not formally be dealt with in this case as the application must be dismissed on its own merits. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate: Dated: November 2001

Mr CB Edmonds SC (Pro Bono Counsel)

Counsel for the Respondent: Ms LB Price

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 8 October 2001

Date of Judgment: 9 November 2001