FEDERAL COURT OF AUSTRALIA Al-Rahal v Minister for Immigration & Multicultural Affairs [2000] FCA 1005 MIGRATION – protection visa – Iraqi citizen- prior residence and family in Syria – Tribunal finding no obligation on Australia not to refoul - whether Tribunal decision unauthorised – whether Tribunal decision involved incorrect interpretation of applicable law – whether Tribunal decision involved incorrect application of law to the facts – whether no evidence for Tribunal decision. Migration Act 1958 (Cth) ss 36, 476 Minister for Immigration & Multicultural Affairs v Al Sallal (1999) 167 ALR 175, cited Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, followed Rajendran v Minister for Immigration & Muticultural Affairs (1998) 86 FCR 526, cited Minister for Immigration & Multicultural Affairs v Kabail (1999) 93 FCR 498, cited Minister for Immigration & Multicultural Affairs v Gnanapiragasam (Federal Court, Weinberg J, 25 September 1998, unreported), cited Barzideh v Minister for Immigration & Multicultural Affairs (1996) 69 FCR 417, cited AYDAR AL-RAHAL V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 12 OF 2000 R D NICHOLSON J 28 JULY 2000 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W12 of 2000 BETWEEN: HAYDAR AL-RAHAL APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: R D NICHOLSON J DATE OF ORDER: 28 JULY 2000 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application for review be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W12 of 2000 BETWEEN: HAYDAR AL-RAHAL APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: R D NICHOLSON J DATE: 28 JULY 2000 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 25 January 2000. The decision of the Tribunal was to affirm a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. At the time of the Tribunal decision, the applicant was a 27 year old male citizen from Iraq. He arrived in Australia on 13 August 1999 and was subsequently taken into immigration custody at the Port Hedland Immigration Detention Centre. He lodged his application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") on 21 September 1999. 2 The original application to this Court was filed by the applicant in a standard form often used by detainees of the Detention Centre. A notice of motion filed shortly before the hearing sought an order that an amended application dated 22 May 2000 stand as the applicant's application in these proceedings and that the time for the filing and service of the notice of motion be abridged. The respondent did not contest the motion, which was granted. Applicant's history 3 The applicant's case as stated to the Tribunal and as set out in its reasons was, in summary, as follows. 4 The applicant is an Arab Shia who claimed to be an Iraqi citizen born in Baghdad. He stated that he resided in Aqrah in the North of Iraq from 1979 until May 1991 when he went across the border to Syria with the help of a smuggler. He stated that his mother, younger brother and sister continue to live in Iraq, although they no longer live in North Iraq where his father had been posted as an Arabic teacher. He told the Tribunal that in April 1991, after the liberation of the South, his family moved south intending to go to Hillah [Al-Hillah] via Baghdad. The applicant told the Tribunal that his mother now lives in Babel, and his brother and sister in Baghdad. He claimed he has not known the whereabouts of his father and older brother since their arrests in 1988 and 1990 respectively. 5 The applicant stated he had lived in Al-Hasakie [Al-Hasakah], Syria from 1991 to 1993 on a farm. In submissions prior to the hearing before the Tribunal, he indicated he had worked for the Iraqi opposition party Al-Dawa in their office at Al-Qamishli in Syria. He gave evidence that Al-Qamishli is located in the general region of Al-Hasakie and the party operated from a farm. 6 The applicant told the Tribunal that he moved to Damascus in 1993. He had lived there at four different addresses and was self-employed doing word processing for a bookshop. He stated that as an adult Iraqi he was unable to continue his education in Syria. 7 In May 1999, while in Damascus, the applicant married a 19 year old Iraqi woman from Najaf [An Najaf] in the South of Iraq. She remains in Syria where she is living with her parents. 8 The applicant told the Tribunal that he left Syria with the help of a smuggler who provided him with a false Iraqi passport, ticket and immigration requirements for which the applicant paid US$1,500. He used the passport to travel to Malaysia, later arriving in Australia by boat, having thrown the passport overboard. 9 The applicant claimed before the Tribunal that his residency in Syria was illegal. He also said his wife resided illegally there. However, he accepted that, like him, she did not require a grant of residence in Syria to live there. 10 The applicant told the Tribunal that he had carried out many activities against the regime of Saddam Hussein and was on a list of people who participated in the Intifada (uprising). He feared returning to Iraq for reason of his involvement in the Intifada, his later association with the Al-Dawa opposition party, his not having fulfilled his military service obligations, his illegal departure and his current application for protection. His submissions argued that for the foregoing reasons as well as his relationship to his father and older brother (each of whom were arrested and have disappeared) as well as his Shia religion, he has a well-founded fear of persecution in Iraq for reason of religion, imputed political opinion and membership of a particular social group, defined as his family. Tribunal's reasons and findings 11 The Tribunal advised the applicant that Australia does not have protection obligations to a person who has been accorded effective protection in a third country. That was a reference to Article 33 of the Convention Relating to the Status of Refugees 1951 done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees 1967 done at New York on 31 January 1967 ("the Convention"). That article reads: "(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." The Tribunal said it was an issue in connection with the application whether the applicant had effective protection in Syria where he had lived for over eight years. If that was the case, the prohibition arising from Article 33 would have no application if he was returned to Syria. 12 The Tribunal's reasons referred to the following matters which it considered were apparent from country information: (i) Iraqi nationals could enter and re-enter Syria, were able to remain in Syria for as long as they wished providing they do not get involved in activities incompatible with law and order. (ii) All Arab nationals can enter Syria at any time without entry visa requirements with the exception of Iraqis. They require the sponsorship of either a relative or friend residing in Syria or of one of the Iraqi opposition parties operating in Syria. The applicant's evidence indicated he would be able to re-enter Syria with the support of the Al-Dawa party or the sponsorship of his wife. (iii) Despite Syria not having a well defined asylum policy, some Arabs stay there for 20 to 30 years without travel documents or residency permits. (iv) Iraqis, like other Arabs, have access to health and education free of charge and are able to rent properties without restriction. Like other Arabs, they are not able to own property or businesses and have no entitlement to social assistance. They are not permitted to work without a permit and permits are not easy to obtain. Most Arab residents are reported to work without a permit to which the authorities largely turn a blind eye. (v) Iraqis who break the law in Syria are detained and either incarcerated in a Syrian prison (most likely) or deported (possibly). (vi) Iraqis who are involved in activities considered to be a threat to state security are deported to either North Iraq or any other country they nominate. The types of activities which could attract deportation are those deemed to constitute a threat to state security. Examples are said to include dealing with foreign currency, falsifying documents and attempting to cross the border to Lebanon. (vii) It is most unlikely that any rapprochement between Syria and Iraq will result in refugees and dissidents in Syria being forced to return to Iraq. 13 In response, the applicant claimed: (a) he would be imprisoned, tortured and perhaps executed if he were to return to Syria because illegal immigrants who have left Syria are imprisoned and tortured if returned. (b) As an Iraqi, he would need an opposition party to request a security committee permit for him to enter Syria and he no longer had the support of the Al-Dawa party. (c) A permit would only allow one or two months residency after which he would become an illegal resident and exposed to arrest. Residency was allowed only to prominent members of the Iraqi opposition and families allowed to remain illegally. (d) Work was restricted and educational opportunities limited. (e) Improved relations between Syria and Iraq has made residence in Syria increasingly difficult for Iraqis, particularly due to the presence of Iraqi security officers. 14 The Tribunal made the following findings: (1) The applicant was an Iraqi Shia Arab. (2) Iraqis may enter and re-enter Syria if sponsored by a relative or friend or an Iraqi opposition party operating in Syria. The applicant has the support of his wife. He also has the support of the Al-Dawa party, the applicant's argument to the contrary being specifically rejected. (3) The applicant's assertion that Iraqis can only stay in Syria legally for a short period of time was inconsistent with the country information and his own evidence. His evidence suggested that his residency in Syria was legitimate and free from problems. He did not claim, and there was nothing in his evidence to suggest, that he had a well-founded fear of persecution in Syria, where he lived and worked for over eight years and where his wife resides. (4) The applicant is not an illegal immigrant and is able to re-enter Syria with the relevant sponsorship. (5) It was most unlikely that any rapprochement between Syria and Iraq would result in refugees and dissidents being forced to return to Iraq. (6) It is not minor crimes that place people at risk of deportation from Syria rather it is breaches deemed to pose a threat to state security that do so. Even then, they are deported to Northern Iraq or a country of their choice. 15 The Tribunal's conclusion therefore was: "…the applicant can re-enter Syria where he can remain indefinitely; where there is nothing to suggest that he would be persecuted; and where the risk of deportation to Iraq, such that he would be in the hands of the Iraqi authorities, is highly unlikely to the point of being remote. The Tribunal is therefore satisfied that the applicant has effective protection in Syria. Accordingly, Australia does not owe protection obligations to the applicant." Legislative Framework 16 Section 36 of the Act makes provision for a class of visa known as a protection visa. Subsection 36(2) provides that: "A criterion for a protection visa is that the applicant for a visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees as amended in 1967 by the Protocol Relating to the Status of Refugees". 17 Part 866 of Sch 2 of the Migration Regulations 1958 (Cth) prescribes the criteria for the grant of a protection visa, one of which is that at the time of the decision the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 18 As a Contracting State to the international instruments comprising the Convention, Australia has obligations to person who are "refugees" as defined. Article 1 of the Convention contains the definition of the term "refugee". The relevant element in the definition appears in Article 1A(2), which provides that a refugee is any person who: "…owing to 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 ." However, Article 1E of the Convention may operate to exclude a person from being deemed a refugee. Article IE provides: "This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligation which are attached to the possession of the nationality of that country." 19 In the case of the applicant, the starting point is Article 33 of the Convention, set out above. A refugee must not be refouled to the frontiers of territories where his life or freedom would be threatened. However, in the situation where an applicant has come to Australia via a third country and that country can offer the applicant effective protection, there will not be any prohibition on Australia from refouling the applicant to that third country. Australia's obligations can be satisfied by refoulement to a third country, notwithstanding that such country is not a party to the Convention: Minister for Immigration and Multicultural Affairs v Al Sallal (1999) 167 ALR 175. Whether decision unauthorised 20 The first ground of review is that the decision not to grant a protection visa to the applicant was not authorised by the Act or the Migration Regulations:s 476(1)(c) of the Act. 21 This ground was particularised in terms of error of law set out in the remaining three grounds. Should one of those be made out, it is contended for the applicant that the Tribunal's decision was unauthorised. Whether incorrect interpretation of the applicable law 22 The second ground of review is that in deciding the applicant was excluded from protection in Australia, the Tribunal incorrectly interpreted the applicable law: s 476(1)(e) of the Act. 23 The ground is particularised in two respects. The first is that the Tribunal's misinterpretation arose because it failed to recognise that Australia may only return the applicant to Syria if the applicant has secured rights and entitlements there which extend to permanent residence, to eventually becoming a citizen of Syria and to effective protection. The latter is said to include the right for the applicant to reside, enter and re-enter Syria. 24 The second particularisation is that the Tribunal should have considered the application of Article 1E of the Convention; that is, whether in Syria the applicant would have the same rights and be under the same obligations as a Syrian national excepting rights of a political kind and disabilities so slight as to be negligible. 25 The issues raised by the ground are therefore whether Article 33 imports some standard which the Tribunal failed to apply. Contentions for the applicant 26 The contentions for the applicant commence by accepting that the question raised by Article 33 is whether, as a matter of practical reality and fact, an applicant is likely to be given effective protection by being permitted to enter and live in a third country where the applicant "will not be under any risk of being refouled to his original country": Al-Sallal at 185. It is submitted that the Tribunal was therefore required to find whether the applicant would experience genuine protection in Syria. 27 It is accepted for the applicant that the following are relevant considerations for the Tribunal in considering whether Article 33 prohibits the refoulement of an applicant for refugee status: (a) the individual circumstances of the refugee: Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 563; (b) whether the third country is a party to the Convention: Al-Sallal at 185; (c) whether the third country has granted refugee status: Thiyagarajah at 562; (d) whether the applicant has secured rights and entitlements in the third country short of refugee status: Rajendran v Minister for Immigration & Muticultural Affairs (1998) 86 FCR 526; (e) whether the nature of the refugee's contact with the third country provides the opportunity to obtain refugee status in that country and gives rise to effective protection from refoulement: Minister for Immigration & Multicultural Affairs v Kabail (1999) 93 FCR 498. 28 The second particularisation is supported by reference to the need for consistency in the interpretation of Articles 33, 1A and 1E of the Convention: Thiyagarajah at 564-566. With these considerations in mind, it is submitted for the applicant that for a breach of the Article 33 obligation to be avoided, the third country should be found to provide: · a right to enter; · the right to reside permanently; · the right to obtain eventual citizenship; · the right to re-enter; · a haven absent of any real chance of refoulement to the frontiers of territories where life or freedom would be threatened. Reasoning 29 In my view these contentions for the applicant are answered by present Full Court authority. The Full Court in Al-Sallal at 185, in following the approach in Thiyagarajah, accepted that the standard required to be met for there to be no breach in the application of Article 33 is whether an applicant is likely to be given effective protection by being permitted to enter and to live in a third country where he or she will not be under any risk of being refouled to his or her original country, that to be judged as a matter of practical reality and fact. It will be a relevant, but not determinative, circumstance for examination on that basis whether the third country is a party to the Convention: Al-Sallal at 185. It is not necessary that the applicant concerned have the right to "permanent residence" in the third country: Minister for Immigration & Multicultural Affairs v Gnanapiragasam (Federal Court, Weinberg J, 25 September 1998, unreported) cited in Al-Sallal at 180. The content and direction of these authorities is to abjure any rigid standard based on a check list and to rely on judicial assessment of the practical realities and relevant circumstances in relation to an applicant's position in a third country. 30 This position does not require modification to take account of the provisions of Article 1E. That Article addresses a person who has taken up residence in a country. The relevant standard there to be judged derives from the function of the Article. Hill J in Barzideh v Minister for Immigration & Multicultural Affairs (1996) 69 FCR 417, a decision viewed with approval in the later Full Court decision in Thiyagarajah, held "short of matters of a political kind, it seems to me that the rights and obligations of which the article speaks must mean all of those rights and obligations and not merely some of them". As the Full Court said in Thiyagarajah at 566, the practical significance of the Court following Barzideh is limited by the conclusion that Australia does not necessarily have protection obligations to a person who has rights of residence in a third country (that is not his or her country of nationality). Nor is Article 1E one which requires consideration until after consideration of Article 33: cf Thiyagarajah at 555-558. 31 In my view the Tribunal was not necessarily obliged to make positive findings on the list of matters adumbrated in the applicant's contentions. Rather it was required to consider whether as a matter of practical reality and fact effective protection was available in the third country. That may or may not encompass findings on some or all of the matters so adumbrated, depending upon the evidence in the case. The Tribunal did not incorrectly interpret the applicable law. Whether incorrect application of the law to the facts 32 The third ground of review is based on the second limb of s 476(1)(e), and is that the Tribunal was in error of law because it incorrectly applied the law to the facts. 33 In particularisation of this ground it is pleaded that the Tribunal failed to apply Article 1E of the Convention to the facts as found. I have already found that, as a matter of law, the Tribunal was required to address Article 33 first. Only in the event that the Tribunal found that Article prevented refoulement would it have then been necessary for the Tribunal to turn to Article 1E. In her reply, Counsel for the applicant, appearing pro bono, accepted this was the correct position. 34 The further particularisation of the ground claims it was not open to the Tribunal to exclude the applicant from protection in Australia in the light of the following: (i) The applicant has not been granted refugee or permanent residence status in Syria. (ii) The applicant is not entitled to and has not secured permanent residency and citizenship in Syria. (iii) The applicant does not have a travel document that entitles him to re-enter Syria. (iv) The applicant does not have a secured right to enter or re-enter or reside in Syria. (v) The applicant does not have the same rights and obligations a Syrian national and the disabilities he suffers as an Iraqi in Syria are not negligible. (vi) Syria is not a signatory to the Convention or any regional legal instrument relating to the status of refugees and does not have a defined asylum policy. (vii) Iraqis in Syria obtain refugee status through the UNHCR in Damascus and are resettled in other countries. (viii) The degree of protection expected of a contracting state cannot confidently be anticipated from Syria. (ix) The real chance that the applicant would suffer persecution in Syria and/or be refouled by Syria to Iraq. 35 Most of these items repeat the items raised in connection with the second ground of appeal. None of them were findings which the Tribunal was obliged to make. The real nub of the ground is whether on the findings which the Tribunal made it wrongly concluded that there was effective protection. The essence of the argument is that even if Syria were to grant the applicant re-entry, his position in Syria as an "illegal" Iraqi is at best tolerated and provides no right to reside permanently or a right to obtain eventual citizenship. Furthermore, there is no obligation on Syria to treat him as a refugee and to prevent his return to Iraq. 36 The ground of appeal in this particularisation invites the Court to (impermissibly) re-engage in assessment of the evidence before the Tribunal. The ground is really pressed in the context of the fourth ground. I therefore turn to that ground. Whether no evidence 37 This ground contends that there was no evidence to justify the making of the decision that the applicant was excluded from protection in Australia and consequentially could be safely refouled to Syria: s 476(1)(g). That ground must be understood in the context of s 476(4) which provides: "(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 38 On the assumption that the matters referred to in Article 33(1) are particular matters referred to in s 476(4)(a), it was necessary for the Tribunal to have before it evidence from which it could be reasonably satisfied the matters were established. In my view, this was the case. 39 The most recent country information report provided to the Tribunal stated that Iraqis would be free to enter Syria provided they were sponsored either by a relative or friend residing in Syria, or by one of the Iraqi opposition parties operating in Syria. This was evidence to support the Tribunal's finding that the applicant would be likely to be admitted under both categories. 40 There was also evidence before the Tribunal that once in Syria, Iraqis may remain in the country indefinitely unless involved in criminal offences (which may lead to incarceration rather than deportation). This evidence did not involve any confusion of Iraqis with other Arabs, as contended for the applicant. Rather it was based on evidence that Iraqis so admitted were in that respect like other Arabs. 41 There was also evidence that it was most unlikely that any rapprochement between Syria and Iraq would result in Iraqi refugees and dissidents in Syria being forced to return to Iraq. 42 No case can be made that either limb of s 476(4) can be satisfied so that the ground based on s 476(1)(g) is not made out. Therefore neither grounds 3 or 4 are made out. Conclusion 43 It follows also that ground 1 is not made out. Consequently, the application for review fails. The application should be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON. Associate: Dated: 28 July 2000 Counsel for the Applicant: Ms L B Price Counsel for the Respondent: Mr L A Tsaknis Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 May 2000 Date of Judgment: 28 July 2000