W361/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 210

FEDERAL COURT OF AUSTRALIA

W361/01A v Minister for Immigration and Multicultural Affairs

[2002] FCAFC 210 MIGRATION – refugee – refusal of a protection visa –– stateless Palestinian resident in Syria – whether Tribunal failed to consider the risk of persecution facing the appellant as a failed asylum seeker – whether Tribunal failed to consider relevant material – where conclusions of country reports differed whether Tribunal should have preferred reports favourable to appellant because they were later in time Migration Act 1958 (Cth) W361/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W361 OF 2001

LEE, CARR & FINKELSTEIN JJ 9 JULY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 361 of 2001

On appeal from a single judge of the Federal Court of Australia

BETWEEN: W361/01A

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES: LEE, CARR & FINKELSTEIN JJ

DATE OF ORDER: 9 JULY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: The appeal be dismissed with costs. 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 REGISTRY W 361 of 2001

On appeal from a single judge of the Federal Court of Australia

BETWEEN: W361/01A

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES: LEE, CARR & FINKELSTEIN JJ

DATE: 9 JULY 2002

PLACE: PERTH

REASONS FOR JUDGMENT THE COURT: 1 The appellant seeks asylum in Australia, claiming that he has a well-founded fear of persecution if he were required to return to Syria. His application for a protection visa was refused because a delegate of the respondent ("the Minister") was not satisfied that the appellant was a Convention refugee. The delegate's decision was affirmed by the Refugee Review Tribunal ("the Tribunal"). There was an unsuccessful attempt to have the decision of the Tribunal reviewed by a single judge. Now we have the appeal from that decision. 2 The following is a brief summary of the appellant's case before the Tribunal. He is a stateless person who was born a Palestinian refugee. The appellant's country of former habitual residence is Syria. This is a country with a poor human rights record. The government uses its powers to prevent organised political opposition and the use of torture and arbitrary detention is widespread. Prison conditions are poor, many prisoners suffer prolonged detention without trial, trials in the security courts are often unfair and the judiciary is corrupt and inefficient. The appellant produced information to the effect that hundreds of Lebanese, Palestinians and Jordanians have been arbitrarily arrested and held in secret detention, in some cases for more than twenty years. Many of those who have been arrested have been held without charge or trial. Others were sentenced in secret summary trials where even the charges and the sentences were not known to the defendants. Scores of those arrested have "disappeared": that is, they have either been executed or held in unacknowledged detention. 3 The appellant testified that he is from a family who have had a long involvement with the Al Fatah movement and that his father and one brother were "martyrs to the organisation [of Al Fatah]". In 1993 the appellant was conscripted into the Palestinian Liberation Army. In 1994 he obtained a discharge from military service by bribing an army medical board to certify him unfit for duty. After he obtained his discharge the appellant joined Al Fatah and worked as a guard at one of Al Fatah's offices. He said that in Syria it is illegal to be a member of Al Fatah, and the penalty is a minimum of seven years' imprisonment. 4 Following a family dispute in mid 2000, the appellant's cousin reported him to the Syrian Intelligence for having obtained his discharge from the Palestinian Liberation Army on fraudulent grounds. The Syrian Intelligence raided the appellant's family home and found his Al Fatah membership card and a pistol that belonged to his father. The appellant was warned not to return to his home and so went into hiding but two of his brothers were arrested and detained for three days. A short time later the appellant fled from Syria illegally. His sister subsequently informed him that his brothers had again been arrested and held in prison and that she also had been arrested and detained for fifteen days. 5 Relying upon the foregoing account of events, the appellant said that he feared persecution because of his political opinion, his Palestinian ethnicity, his membership of two particular social groups (his immediate family and "objectors to military service"), his possession of a weapon and because he obtained a discharge from the army by falsifying medical reports. The Tribunal, however, was not satisfied that the appellant faced a real chance of persecution. It is necessary to look at the Tribunal's reasons to appreciate why it reached that conclusion. 6 The Tribunal made the following findings. It accepted that the appellant presented false documents to obtain a discharge from the Palestinian Liberation Army. It found that he did this because he had been bullied by, and forced to give money to, his superior officer. The Tribunal accepted that the appellant had worked as a guard for Abu Nidal (a terrorist group) in 1998 but that apart from performing guard duty, the appellant had no involvement in that organisation. The Tribunal accepted that the Syrian Intelligence questioned the appellant's brothers about the appellant's membership of Abu Nidal, his illegal avoidance of military service, and his possession of a pistol. In virtue of its finding that the appellant's involvement in Abu Nidal was limited to casual guard duty, the Tribunal was not satisfied that the Syrian Intelligence had any major concern about the appellant's membership of Abu Nidal. The appellant provided the Tribunal with a document that purported to be a summons to appear before a military court and an "administrative order" that noted that he had been deprived of his "military and civil rights because of rebellion and his refusal to execute military orders, for reasons of security". The Tribunal accepted the validity of these documents but said that they related to the manner in which the appellant had obtained his discharge from the army. 7 The Tribunal then considered whether there was a real chance that the appellant would be persecuted for reasons of political opinion if he returned to Syria. The Tribunal noted that the appellant had not been harmed in the past, apart from a brief period of detention some six years earlier on suspicion of involvement with the Muslim Brotherhood. The Tribunal considered it "highly unlikely" that the mere discovery of the appellant being a member of Abu Nidal would result in harm being done to him. To a large extent the Tribunal based this conclusion on country information to the effect that Syrian authorities were sympathetic to rejectionist Palestinian groups such as Abu Nidal. The Tribunal was not satisfied that the appellant would incur any penalty for having an unauthorised weapon in his possession, in the absence of some other offence relating to his political conduct. Even if a penalty were to be imposed, the Tribunal found that it would be for a breach of the criminal code, and thus outside the scope of the Refugees Convention. 8 The Tribunal considered that part of the appellant's claims which was based on his ethnicity as a Palestinian. It gave its reasons for rejecting the claim. The appellant raises no objection to the Tribunal's decision on that matter. 9 The Tribunal rejected the appellant's claim for persecution on account of family membership. The Tribunal noted that both the appellant and his family had lived in Syria for many years without any interference from the authorities and that if the authorities had any interest in him because of his family relationship, some action would have been taken against him during that time. In this regard the Tribunal referred to the fact that the appellant's father and brother had been killed more than ten years ago. 10 The Tribunal appears to have accepted that the appellant might be both prosecuted and penalised for the illegal manner in which he obtained his discharge from military service. It did not, however, accept that this could be for a Convention reason. 11 As regards the appellant's illegal departure from Syria, the Tribunal was prepared to accept that the appellant might be liable to some penalty for illegally leaving the country. However, it said that there was no evidence that this penalty would be imposed for a Convention reason. On the question whether the appellant faced persecution as a failed asylum seeker, the Tribunal said that the evidence was "inconclusive" though it appeared that any punishment would be "dependent on factors which caused the asylum-seeker to leave the country". Having formed the view that the appellant was not otherwise at risk for a Convention reason, it found that his claim for asylum in Australia would not lead to mistreatment for a Convention reason. 12 At trial the last mentioned findings (that the appellant would not be persecuted because of his illegal departure from Syria and that he would not be persecuted for claiming asylum in Australia) were the only findings that were attacked. It was said that these findings demonstrated that the Tribunal had incorrectly interpreted or applied the applicable law and that it could not have been satisfied that the appellant was a person to whom Australia did not owe protection obligations. In particular the appellant argued that because the evidence of the treatment of failed asylum seekers was "inconclusive", the Tribunal ought to have found that there was a real chance of persecution for a Convention reason, namely imputed political opinion. 13 The learned primary judge examined the reasoning of the Tribunal that led to its finding. He said that the finding amounted to an express statement that the Tribunal was satisfied that the appellant would not be persecuted for a Convention reason and that its reasoning process could be summarised as follows: "* The evidence as to how failed asylum seekers would be dealt with by Syria is inconclusive. * However, the way in which Syria deals with failed asylum seekers depends on the factors that cause the asylum seeker to leave the country. * The [appellant] is not at risk with the Syrian authorities for any Convention reason. * Accordingly, the treatment of the [appellant] upon his return would not be harsher than anyone else for any Convention reason." Accordingly, the learned primary judge held that this reasoning did not demonstrate that the Tribunal was mistaken in its understanding of the concept of a real chance of persecution. His Honour was prepared to accept that the Tribunal's conclusion suggested there might be an erroneous finding of fact but that would not be sufficient to vitiate its decision. 14 On the appeal the appellant confined his attack on the Tribunal's decision to three related grounds. We will deal with them in the order in which they appear in the amended notice of appeal. 15 First it is said that the Tribunal did not take into account a country report dated 27 September 2000 from the Department of Foreign Affairs and Trade which deals with the position of failed asylum seekers in Syria. The relevant parts of the report were in fact set out in the Tribunal's reasons. They read: "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 [no further advice received to date] … Syrians would most likely facilitate re-entry of/issue travel document to a UNRWA-registered Palestinian who left Syria legally. We have sought further advice on this question from contact [sic] in Syria [no further advice to date] … 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." The appellant says that in virtue of the Tribunal's findings of fact, it was very likely that he would come to the notice of the Syrian authorities if he returned to Syria. Accordingly, so the argument went, the Tribunal was required to consider the position of failed asylum seekers in Syria, particularly in the light of the information contained in the September report. 16 The reason the Tribunal rejected the appellant's claim for refugee status based on his failed application for asylum in Australia is that: "The evidence in relation to failed asylum-seekers is…inconclusive, though it would appear to be dependent on factors which caused the asylum-seeker to leave the country…Given that the Tribunal has not accepted that the applicant is at risk with the Syrian authorities for any Convention reason, the Tribunal is satisfied that any questioning to which the applicant might be subjected on his return to Syria would not result in his being treated more harshly for any Convention reason. Such questioning would presumably uncover the fact that he was the subject of an Administrative Decision in relation to his military service obligations, but the Tribunal has found that any penalty incurred because of this would be as a result of a law of general application." 17 The information that was before the Tribunal in relation to the treatment by Syrian authorities of persons who had departed illegally from that country and those who sought political asylum included a report from the Department of Foreign Affairs and Trade dated 14 March 2000 which commented: "In Damascus CMO and PMOC met with General Hariry (head of Immigration, Ministry of Interior). General Hariry advised that all Syrian nationals who are currently unlawfully in Australia will be allowed to return to Syria without question." An earlier report made in 1997 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 presumably 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." A further report dated 13 August 2000 was in the following terms: "It is unlikely that Syria would admit an undocumented Palestinian refugee. If his UNRWA registration could be confirmed readmittance might be possible. However, given a possible illegal departure from Syria and if the circumstances of previous arrests were as described he would most likely face some form of mistreatment or detention on return to Syria." 18 These reports, together with the September report, could lead a trier of fact to conclude that the information relating to the treatment of failed asylum seekers is "inconclusive" in the sense that the information does not establish that such a person would or would not be mistreated. This finding of "inconclusiveness" was open because at least one report states that a failed asylum seeker will not suffer harm, and another report suggests that such a person "might" attract attention. To say, as the appellant does, that the Tribunal's finding did not take into account the September report cannot be sustained. First, the fact that the report was set out in the Tribunal's reasons shows that it was aware of its contents. Second, the contents of the report provide the basis for the Tribunal's finding of "inconclusiveness". 19 We would also reject the appellant's submission that the reports which were favourable to his claim should have been preferred by the Tribunal because they were later in point of time to those that were unfavourable to his case. This complaint is merely about the fact finding processes of the Tribunal, and errors of fact, without more, are not errors of law that would vitiate the Tribunal's decision. 20 The second ground is directly related to the first. The appellant says that by not taking into account the September report, the Tribunal did not give realistic consideration to the question whether the appellant would be persecuted if returned to Syria. This ground is not made out because the underlying premise, namely that the Tribunal had not taken the September report into account, cannot be sustained. 21 Finally, the appellant contends that the Tribunal erred because it did not take into account what the appellant asserts to be a fact, namely it was very likely that he would come to the attention of the Syrian government if he was returned. To deal with this submission it is necessary to refer to further features of the Tribunal's decision. The Tribunal did conclude that there was a real chance that the appellant might be prosecuted because he had illegally obtained his discharge from military service. So the appellant could come to the attention of the Syrian authorities. On the other hand, the Tribunal was not prepared to accept that any punishment that he would suffer would be imposed for a Convention reason. The factors which led the Tribunal to this conclusion are: (a) the appellant had not been subjected to any mistreatment for reasons of his political opinion except a brief period of detention approximately six years before the decision; (b) the period of detention was two days and the appellant was not subsequently questioned about his suspected affiliation with the Muslim Brotherhood; (c) the appellant had only a minimal involvement with Abu Nidal; (d) the appellant had not been questioned about Abu Nidal; (e) Syria supported groups such as Abu Nidal; (f) the appellant was not involved in any operations on behalf of Abu Nidal which would embarrass Syria; (g) in any event, there was no evidence that any penalty had ever been imposed on members of Abu Nidal, notwithstanding the appellant's claims to the contrary; (h) there is little chance that the appellant would incur a penalty for possession of an unauthorised weapon in the absence of him having committed some political offence. 22 In the light of these findings it is not correct to say that the Tribunal failed to take into account that the appellant might come to the attention of the Syrian government in deciding whether he was at risk of persecution. A fair reading of its decision shows that the Tribunal did take that into account but nevertheless reached the conclusion that the appellant was not at risk of persecution for a Convention reason. 23 It follows that the appeal should be dismissed with costs. I certify that the preceding twenty‑three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.