FEDERAL COURT OF AUSTRALIA WAJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 192 MIGRATION – appeal from single judge dismissing an application for review of decision of Refugee Review Tribunal – Tribunal affirmed decision of delegate not to grant protection visa to appellant – application of Article 1(D) of the Refugees Convention – whether expression "ipso facto" in Article 1(D) confers an entitlement on appellant to a protection visa – whether Tribunal fell into jurisdictional error in assessing the appellant's claims. Migration Act 1958 (Cth), s 476 Convention Relating to the Status of Refugees 1951 Art 1(D) Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329 followed WACH v Minister for Immigration and Multicultural Affairs [2002] FCAFC 338 followed WACG v Minister for Immigration and Multicultural Affairs [2002] FCAFC 332 followed WAED v Minister for Immigration and Multicultural Affairs [2002] FCAFC 333 followed WAEI v Minister for Immigration and Multicultural Affairs [2002] FCAFC 334 followed WAJB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W332 of 2002 LEE, HILL & CARR JJ 21 AUGUST 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W332 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WAJB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: LEE, HILL & CARR JJ DATE OF ORDER: 21 AUGUST 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's 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 DISTRICT REGISTRY W332 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WAJB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: LEE, HILL & CARR JJ DATE: 21 AUGUST 2003 PLACE: PERTH REASONS FOR JUDGMENT THE COURT: introduction 1 There are two issues raised in this appeal. The first is whether the Refugee Review Tribunal and the learned primary judge erred in deciding that the appellant is not automatically entitled to the protection of the 1951 Convention relating to the Status of Refugees as affected by the 1967 Protocol relating to the Status of Refugees (together "the Convention") by the operation of paragraph 2 of Article 1(D) of the Convention. The second is whether the appellant's claim of a well-founded fear of persecution on return to Syria was assessed by the Tribunal according to law. factual and procedural background 2 The appellant is a stateless Palestinian born in Damascus in 1957. His father was born in Palestine, but fled from there in 1948. The appellant is registered with the United Nations Relief and Works Agency ("UNRWA"). Until travelling to Australia the appellant (and his wife and two children) resided, though not in a camp, in Syria. 3 The appellant claimed that he had a well-founded fear of persecution for reasons of political opinion or imputed political opinion if he were returned to Syria. Those fears were said to have arisen out of the following events: (a) arrest and detention by Syrian Security in 1983 when he became lost while returning, as a soldier in the Palestine Liberation Army ("PLA"), to his mountain base and sought refuge at a Syrian army post; (b) detention by Syrian Security in October 2000, following arrest while a demonstration outside the American Embassy in Damascus was dispersed; (c) release from detention in October 2000 "without court" by the intervention of an officer of the Syrian Intelligence Service, who secured the appellant's release by arranging for him to be transferred to another branch of Syrian Security and covering up his record; (d) that record with Syrian Security which (so the same Syrian Intelligence Service officer had informed him in October 2000) contained details alleging that the appellant had spied for Israel and had an anti-regime attitude, and would be used against him; and (e) departure from Syria, with the intervention of a smuggler, in November 2000 about ten days after his release from detention. 4 The essence of the appellant's claim for protection was that he feared persecution if returned to Syria because, on such return, checks would be made on him and his security record would show previous arrest, interrogation and detention (including on suspicion of spying for Israel). The means of his release from custody in October 2000, his illegal departure from Syria and his application for asylum in Australia would also become known. The Syrian authorities would thereby impute to him disloyalty to the governing regime. This would lead to his persecution by imprisonment for long periods of time or worse. The appellant also feared that his family would now be implicated as well. THE Tribunal's decision 5 The Tribunal accepted that the appellant had been arrested and detained by Syrian Security in 1983 when he became lost whilst returning to his base. But it did not accept that he was considered to be an Israeli spy for any significant period of time, or that he had been beaten or tortured. It found that the appellant had exaggerated his period of detention. The Tribunal said that even if it were wrong about that finding, the appellant's ability thereafter to set up a business and work without any problems for the next 15 years indicated that he was not considered by the authorities to be either an Israeli spy or to be anti-government. 6 As to the incident in October 2000, the Tribunal stated that it was possible that the appellant was in the wrong place at the wrong time and was detained. However, it considered that it would not have taken two weeks (as claimed by the appellant) for the Syrian authorities to check his account of having a maintenance contract at the officer's club to which he was heading. It did not accept that the appellant was beaten and tortured or that the authorities would have taken any particular notice of his prior detention in 1983, if that had occurred, as it was so long ago. The Tribunal said that even if the appellant had been detained for an identity check in October 2000, this was a "once only incident". The Tribunal did not accept that there was any real chance that the appellant would face persecution should he now return to Syria. 7 As to the balance of the appellant's claims the Tribunal concluded in the following terms: [AB 148] '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.' the judgment at first instance 8 The appellant asserted that the Tribunal had fallen into jurisdictional error by making no clear findings about certain matters. Some of those arguments are raised in the second ground of appeal, so we do not propose to give the details here. His Honour held that none of the matters relied upon by the appellant disclosed a failure by the Tribunal to carry out its function, or any competent want of authority to make its decision. 9 The appellant had relied upon those matters as indicating error of law on the Tribunal's part. His Honour rejected that claim for the same reasons which he gave for rejecting the assertion of jurisdictional error. His Honour also rejected a claim of error of law arising from what had been said to be the Tribunal's failure expressly to address the "whole of the applicant's claim" and "the cumulative effect of all relevant circumstances". 10 The final ground upon which error of law was asserted was based on Article 1(D). 11 At the time when his Honour heard this matter, a Full Court of this Court had reserved judgment in Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329 in which the question of the construction of Article 1(D) had also been raised. His Honour deferred delivery of judgment until the Full Court gave its judgment in WABQ. When his Honour gave judgment, he noted in his reasons that the views expressed by Hill J and Tamberlin J in that case had by then been followed in a number of other Full Court judgments. 12 Accordingly his Honour applied the construction of Article 1(D) enunciated in those recent decisions and dismissed the application. the appeal Article 1(D) 13 Article 1(D) of the Convention reads as follows: 'D. 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 definitively 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.' 14 In May last year a Full Court of this Court (Hill, Moore & Tamberlin JJ) heard five appeals which involved the interpretation of Article 1(D). The lead case for reference purposes may be regarded as Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329. Although some differing views were expressed, so far as is relevant to the present appeal their Honours in the course of deciding the five cases (not all of which had the same outcome) were agreed that the phrase "… shall ipso facto be entitled to the benefits of this Convention" means that the relevant persons, Palestinian refugees, are entitled to the benefits of the Convention, but are not automatically to be deemed refugees. Moore J held that in WABQ itself it was not necessary to decide this question because the Tribunal, in that case, had found that the appellant fell within Article 1A(2). But his Honour expressly accepted that part of the reasoning in one of the four other appeals, WACH v Minister for Immigration and Multicultural Affairs [2002] FCAFC 338 at [9]. In the other three appeals, WACG v Minister for Immigration and Multicultural Affairs [2002] FCAFC 332, WAED v Minister for Immigration and Multicultural Affairs [2002] FCAFC 333 and WAEI v Minister for Immigration and Multicultural Affairs [2002] FCAFC 334, Moore J simply stated his agreement with the reasons and orders proposed by Tamberlin J. In each of those three sets of reasons Tamberlin J had adhered to his view on this point as expressed in WABQ. 15 The appellant submitted that the Full Court's decision in WABQ was plainly wrong. 16 The appellant pointed out, as was the case, that the Tribunal in the present case had failed to consider the operation of Article 1(D). The appellant submitted that the Tribunal should have made a finding as to whether there was any protection of refugees from Palestine by a United Nations agency, and whether that protection had ceased. If so, the appellant, as a refugee from Palestine, was entitled automatically to Convention protection without screening under Article 1A(2). Those who drafted the Convention, so it was argued, intended that when refugees from Palestine ceased to receive protection from a United Nations agency, they were to have the "heightened protection" of refugee status under the Convention because theirs was a special case at the time when the Convention was drafted. They had already been identified by the international community as refugees for the purposes of the Convention by reason of race as a result of the events in Palestine following its partition. OUR reasoning in relation to this ground 17 In our view, the Full Court's interpretation of the "ipso facto" phrase in the group of cases which we have described as WABQ, is not plainly wrong. With respect, we think that it is right. The effect of their reasoning is that the second paragraph of Article 1(D) does not operate automatically to confer refugee status. In our view, their reasoning is compellingly persuasive. Their Honours had access to far more in the way of travaux preparatoire and the like than we were provided with in this case [by this remark we intend no criticism whatsoever of counsel for the appellant who appeared pro bono publico] and we would follow their reasoning. 18 Accordingly, even if the second paragraph of Article 1(D) applies, there will be no reviewable error on the Tribunal's part unless that error occurred in its conclusion that the appellant did not fall within Article 1(A). In those circumstances, it is necessary to consider the second ground of appeal, to which we now turn. Whether there was jurisdictional error or error of law on the Tribunal's part 19 The appellant submitted that the Tribunal had failed to make findings on material past events, had failed to engage in the proper process for assessing his claim of well-founded fear of persecution and that this indicated that the Tribunal did not properly understand its task and the application of the law on well-founded fear of persecution. Its failure properly to apply the law affected the exercise of its jurisdiction to the extent that its decision was not authorised by the Migration Act 1958 (Cth). The appellant's submissions were directed individually and cumulatively to five aspects of the Tribunal's reasoning, namely: · the 1983 detention; · the detention in October 2000; · release from detention later in October 2000; · use of the file record held by Syrian security authorities; and · the appellant's departure from Syria with the assistance of a smuggler. the 1983 and October 2000 detentions The Appellant's Contentions 20 As the appellant explained in written submissions, the essence of his claim for protection was that he feared persecution because if he returns to Syria checks will be made on him which will reveal a security record of previous arrest, interrogation and detention (including on suspicion of spying for Israel). The means of his release from custody in October 2000, his illegal departure from Syria and his application for asylum in Australia will become known. The Syrian authorities will impute to him disloyalty to the governing regime which will lead to his persecution by imprisonment for long periods of time or worse. 21 The appellant contended that in the passages of its reasons which dealt with these incidents, there was no clear statement of the Tribunal's findings and the reasons why the detentions occurred. It was only clear that the Tribunal accepted, at the very least, that there was detention and investigation of him for periods of time by the Syrian authorities for political and security reasons. As the Tribunal had not made a clear finding that these significant past events had not taken place, the Tribunal was required, so it was put, to take into account the probability of the detentions in 1983 and 2000 having occurred when assessing the risk of persecution on return to Syria. OUR reasoning 22 In our view, the learned primary judge was correct in dismissing these complaints. A fair reading of the Tribunal's reasons shows that it did not accept that the appellant was beaten and tortured or that he was detained for two years following the 1983 incident. The first of the relevant passages is contained on p 11 of the Tribunal's reasons and was reproduced in the appellant's written submissions. 23 In our opinion, it is sufficiently clear that while the Tribunal accepted that the appellant was detained in the circumstances claimed, it did not accept that he was detained for the period (two years) or for the reasons advanced by the appellant. Also, in the passage which we have set out at par 7 above, the Tribunal revisited the 1983 incident and refused to accept that any of the events of 1983 would lead to the authorities having an interest in him or seriously consider him to be an Israeli spy or that some anti-government attitude in 1983 would cause him problems now, particularly given his long work history. The Tribunal made a specific finding that if the appellant were returned to Syria now, the events of 1983 would not lead to him facing a real chance of persecution. 24 Any uncertainties concerning the Tribunal's reasons in that respect were subsumed by its conclusion that the appellant's ability to set up a business and work without any problems for the following fifteen years indicated that he was not considered by the authorities to be either an Israeli spy or anti-government. 25 Similarly, in relation to the October 2000 incident the Tribunal can be seen to have given due consideration to the claim and to have rejected it. A fair reading of the relevant passages at pp 11 and 12 of the Tribunal's reasons shows that it again worked on the basis that the appellant had been detained in October 2000 in the circumstances claimed. But it is clear that the Tribunal rejected the appellant's claims to have been beaten and tortured. It also expressly declined to accept that on this occasion the Syrian authorities would have taken any particular notice of his prior detention in 1983, given the length of time which had by then expired. It then made an assessment of the insignificance of this incident in the light of the appellant's history of fifteen years without problems. 26 As with the 1983 matter, the Tribunal revisited the October 2000 incident in the context of the applicant's concerns about his file being opened. In that context it reasoned that the appellant's explanation about going to work at the officers' club, would not lead to the Syrian authorities having any ongoing interest in him. release from detention later in October 2000 and use of the file record The Appellant's Submissions 27 The appellant submitted that his claims included a claim that a friend of his, being a member of the Syrian Intelligence Organisation, engaged in subterfuge and manipulation of the system to secure his release. This might lead to imputed anti-regime political opinion and persecution for that reason on his return to Syria. But the Tribunal had failed to make a finding on what he maintained was this significant and important matter. This indicated that it did not properly understand its task. Its task was either to reject clearly a past event or take the possibility of the event having occurred into account when assessing the risk of persecution on return to Syria. 28 Furthermore, the Tribunal had not dealt with the appellant's evidence to the effect that the Syrian Intelligence Service officer, having accessed the appellant's file, had warned him of the contents of that file and how those contents would be used against him if for any reason he was arrested again, and that the officer had advised him to leave the country. OUR reasoning 29 As the primary judge observed, it was apparently not explained to the Tribunal or at first instance how the circumstances of the appellant's release would support an inference of a well-founded fear of persecution for a Convention reason. 30 The Tribunal rejected the appellant's account of his detention in 1983 and October 2000. At the passage set out at paragraph 7 above, the Tribunal specifically considered what might happen if the appellant were returned to Syria and his file were opened. It concluded that neither the events of 1983 or October 2000 would lead to the authorities having an interest in him. 31 In those circumstances, we do not think that it was either jurisdictional error or error of law on the Tribunal's part not to consider the evidence about what the Syrian Intelligence Officer allegedly did or said. departure from syria with the assistance of a smuggler 32 As his Honour noted, the appellant did not contend that by seeking asylum he would be exposed to persecution on return to Syria. There was no country information before the Tribunal in relation to the fate of asylum seekers in Syria and, in those circumstances, in the present matter we do not think that there was any obligation upon the Tribunal specifically to address the hypothesis of a sur place claim. The appellant did not raise such a claim before the Tribunal. Conclusion 33 For the foregoing reasons we will dismiss the appeal with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 21 August 2003 Counsel for the Appellant: Ms L B Price Counsel for the Respondent: Mr P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 May 2003 Date of Judgment: 21 August 2003