FEDERAL COURT OF AUSTRALIA Belay v Minister for Immigration & Multicultural Affairs [2001] FCA 9 MIGRATION – Refugees Convention – effective protection in a third state – whether Tribunal failed to make finding on material question of fact Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549, applied KIDANE BELAY BERAKI V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS A 100 OF 1999 WHITLAM J 17 JANUARY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY A 100 OF 1999 BETWEEN: KIDANE BELAY BERAKI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: WHITLAM J DATE OF ORDER: 17 JANUARY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is 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 NEW SOUTH WALES DISTRICT REGISTRY A 100 OF 1999 BETWEEN: KIDANE BELAY BERAKI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: WHITLAM J DATE: 17 JANUARY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 11 November 1999 affirming a decision to refuse to grant a protection visa to the applicant. 2 The applicant is a native of Eritrea. He was granted a student visa to travel to Australia and arrived here on 8 January 1993 using an Ethiopian passport. Eritrea subsequently gained its independence from Ethiopia, and on 3 December 1994 the applicant was issued with an Eritrean passport. (At the date of the Tribunal's decision this passport was valid until 2 March 2000.) In Australia the applicant was granted further student visas, the last of which permitted him to remain in Australia until 28 February 1998. 3 The application for a protection visa was lodged on 20 February 1998. The applicant's claims rested on his membership of the Eritrean Liberation Front – Revolutionary Council ("ELF-RC"). The respondent's delegate did not accept that he had had a significant involvement in that organization "over the past few years" and concluded that his profile was not of sufficient interest to the Eritrean authorities to cause him any harm. On 27 May 1998 the delegate accordingly refused to grant a protection visa. 4 The applicant retained a migration agent to assist him with the review of the delegate's decision by the Tribunal. He appeared before the Tribunal, accompanied by his migration agent, on 1 July 1999. During the hearing the Tribunal raised the possibility of "effective protection" being given in Ethiopia. The applicant answered questions on this topic, and his agent expressly acknowledged that "effective protection in Ethiopia is an issue for the Tribunal". 5 Following the applicant's appearance before it, the Tribunal requested information from the Department of Foreign Affairs and Trade ("DFAT") relating to, inter alia, the issue whether the applicant could enter Ethiopia and have effective protection there. DFAT provided a report dated 24 August 1999, which the Tribunal forwarded the next day to the applicant and his agent for any comment they wished to make. On 23 September 1999 the applicant's agent forwarded her client's comments on DFAT's report together with a copy of correspondence she had initiated earlier that month with Ethiopia's honorary consul-general in Melbourne. 6 The Tribunal prepared a twenty-three page statement under s 430(1) of the Act. Its key findings may be conveniently compartmentalized into three subject areas. 7 First, the Tribunal accepted (p 17) that the applicant resided in Eritrea immediately before leaving for Australia in December 1992 to take up a scholarship at the Australian National University. It found (p 17) that he is a national of Eritrea. 8 Secondly, the Tribunal accepted (p 17) the applicant's evidence that he was a member of the ELF-RC. It accepted (p 18) that his membership of the ELF-RC was clandestine and that the ELF-RC was suppressed in Eritrea. The Tribunal accepted (p 18) that the applicant's activity in Eritrea included being leader of a cell and covertly recruiting members to the ELF-RC. Importantly, it accepted (p 19) that his membership was known to the authorities in Eritrea. The Tribunal found (p 19) that there was a real chance that, if he were to return to Eritrea, the applicant would be detained and imprisoned for reasons of his political opinion. It concluded that such treatment would be persecutory and found accordingly that there was a real chance of the applicant being persecuted for reasons of political opinion if he were to return to Eritrea. 9 Finally, the Tribunal found (p 23) that the applicant would be permitted to enter Ethiopia and reside there. It found that Ethiopia would not refoule the applicant to Eritrea in the foreseeable future. Accordingly, the Tribunal found that the applicant would have "effective protection" in Ethiopia and that Australia would not be in breach of its obligations under Art 33 of the Refugees Convention by returning him to the frontiers of Ethiopia. 10 The present case is concerned with the third of the above matters, the issue of "effective protection in a third country". In dealing with that issue, the Tribunal acknowledged that the expression "effective protection", as explained by von Doussa J in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 562, required it to consider the question whether the applicant has "a right to reside in, enter and re-enter the third country". As to the nature of that right, the Tribunal purported to apply the decision of Emmett J in Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443 at [23]-[26]. 11 Emmett J's approach on this point was endorsed by the Full Court in Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 at 555-559. That judgment was delivered on 29 October 1999. It had evidently not come to the attention of the Tribunal when, just a few days later, it handed down its decision in this case. 12 Counsel for the applicant makes no formal submission that Al-Sallal was wrongly decided. But he submits that in the present case the Tribunal has failed to make findings on, or to address, the same kind of questions as the Full Court identified in Minister for Immigration and Multicultural Affairs v Sameh [2000] FCA 578. Those matters are: the applicant's ability to travel to Ethiopia and his ability to enter that country. 13 I do not accept these submissions. In the first place, the ability to travel to Ethiopia was never a material question of fact in the present case. In Sameh the Full Court held that the ability to travel to Iraq through Jordan was such a question. Secondly and most importantly, the Tribunal here made extensive references to the material before it touching on the applicant's ability to enter Ethiopia. Having done so, it then addressed the issue (at pp 20-23). It considered the competing material and made the findings I have already mentioned. 14 The grounds specified in the amended application for review apparently rely on pars (a), (d), (e) and (g) of s 476(1) of the Act. The argument outlined by counsel for the applicant was not linked to those provisions in any way beyond the reference to Sameh. However, the allegation in those grounds that an asylum seeker must have "permanent residence" in the third country is, as the Full Court explained in Al-Sallal, wrong. Another ground alleging an exercise of discretionary power was not developed at all. (On its face, it made no sense in the light of the respondent's obligations under s 65 of the Act.) In submissions made by leave after the hearing, counsel for the applicant expanded the particulars in the alleged grounds of review to include a challenge to the Tribunal's assessment of the prospects of "effective protection" in Ethiopia against refoulement to Eritrea. Again, the Tribunal's relevant finding was open to it on the material before it, and the Tribunal referred to that material when making its findings. None of the grounds is made out, and the application will be dismissed with costs. 15 A noteworthy feature of this case is the fact that the applicant had not resided for over a year before he came to Australia in the geographical area that now comprises Ethiopia. It was not submitted that this fact disqualified Ethiopia from being a "safe third country" for the purposes of Art 33 of the Refugees Convention. The Tribunal explained why it considered Ethiopia could be such a country in the following passage (at 21): "The Tribunal considers that the applicant's contact with Ethiopia is such that it gives rise to the possibility that effective protection could be sought in that country: he formerly had Ethiopian nationality and held an Ethiopian passport; he studied at Addis Ababa University from 1973 to 1982 and again from 1984 to 1986; he resided in Ethiopia for three years from 1989 to 1992 [scil. 1991] while employed as a lecturer at Addis Ababa University; he belongs to the Tigrinya ethnic group which is extant in Ethiopia; and speaks Tigrinya and Amharic, two of the main Ethiopian languages." This approach of the Tribunal was not challenged in the current proceeding. Whether Art 33 permits the "return" of a person to a country whence he did not come (except in transit to Australia) might conceivably require consideration in another case. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam. Associate: Dated: 17 January 2001 Counsel for the applicant: JM Gersten Solicitor for the applicant: Alex Lee Counsel for the respondent: RT Beech-Jones Solicitor for the respondent: Australian Government Solicitor Date of hearing: 14 June 2000 Date of judgment: 17 January 2001