FEDERAL COURT OF AUSTRALIA Al Toubi v Minister for Immigration & Multicultural Affairs [2001] FCA 268 Migration Act 1958 (Cth) s 36(2) Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578, distinguished Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, applied SHAKIR AZIZ AL TOUBI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 79 of 2000 R D NICHOLSON J 20 MARCH 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 79 of 2000 BETWEEN: SHAKIR AZIZ AL TOUBI APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: R D NICHOLSON J DATE OF ORDER: 20 MARCH 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant 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 W 79 of 2000 BETWEEN: SHAKIR AZIZ AL TOUBI APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: R D NICHOLSON J DATE: 20 MARCH 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 18 May 2000 which confirmed a decision of the respondent not to grant the applicant a protection visa. The relevant legislative provisions 2 Under s 36(2) of Migration Act 1958 (Cth) ("the Act") a non- citizen in Australia is eligible for a protection visa if that person is someone: "… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. 3 Article 1a(2) of the Convention defines a "refugee" to be any person who: "…owing to a 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". Tribunal's findings 4 The applicant is a citizen of Iraq who arrived in Australia on 13 August 1999. His application for a protection (class XA) visa was lodged on 21 September 1999. A delegate of the respondent refused the application on 2 December 1999. 5 The applicant claimed that he feared persecution in Iraq for reason of being a member of the Shi'a religion and his relationship to people who had been regarded as enemies of the Iraqi regime. He also claimed he would face persecution for having spent time in the neighbouring countries Iran and Iraq. He further claimed he did not have protection from such harm in any other country including countries he had lived in and established connection with, namely Iran and Syria. 6 The Tribunal made the following findings: (1) The applicant lived in Iraq all his life until 1989 when he moved to Iran. He is a member of the Shi'a faith and has always been a clothing trader by profession. (2) In 1984 one of the applicant's brothers was accused of membership of the Al Dawa party, which is banned and membership of which carries the death penalty. He was handed over to the Iraqis and nothing more has been heard of him. A further claim that one of his cousins was executed by the regime was found to be plausible. (3) As nothing adverse happened to the applicant from 1984 when his brother was arrested and 1989, when he moved to Iran, the Iraqi authorities were not concerned that he was associated with the Al Dawa movement or that he shared his brother's dissident views. (4) If he was a supporter of the Imam who was the head of an Iraqi opposition group based in Iran, that was private and individual. Any monitoring of him as a Shi'a did not go beyond questioning. (5) The applicant's freedom of religion to worship as a Shi'a was unrestricted. (6) The applicant's claim to have been monitored and questioned regularly were accepted. (7) The treatment which the applicant received in Iraq did not amount to persecution so that had he remained in Iraq he was not at risk of persecution for his religion or for his political opinion. (8) If the applicant returned to Iraq now or in the reasonably foreseeable future there is a real chance he could face harm amounting to persecution for political opinion, even if imputed rather than actual. (9) As to the applicant's situation in Iran: (a) He was able to live there for six consecutive years. His brother owns property there and his mother continues to live there. His wife is an Iranian national and carries an Iranian passport. (b) He left Iran by choice. (c) He had protection from harm in Iraq by living in Iran and did not face a real chance of refoulement from that country. Had he remained in Iran he would have continued to enjoy the protection from any persecution he feared in Iraq. (d) The applicant cannot return to Iran because of the attitude which Iran takes to the readmission of failed Iraqi asylum seekers from Australia. (10) In relation to Syria: (a) The applicant and his family entered Syria legally, and the applicant also left Syria legally when he flew from Syria to Jordan. (b) The independent material before the Tribunal stated that Arabs may enter and live in Syria indefinitely, and since this is part of government policy it is not accurate to say that a non-Syrian Arab is living in the country illegally if they have entered openly and with clearance and approval. (c) While there was an exception in the case of Iraqis, that exception was for security reasons and the only criteria necessary for Iraqi Arabs is that they be sponsored or vouched for by a friend or relative or Iraqi opposition party. The applicant passed that scrutiny and was able to remain in Syria for the three years he was there. (d) The applicant's brother and his family had also been able to live there in the same street and his wife and their children continue to live in Syria. (e) The Syrian authorities have no security concerns in regard to the applicant or the members of his family who have lived there at various times and continue to live there. (f) Arabs can remain in Syria indefinitely and therefore are not at risk of refoulement, and that this is the case for the applicant and his family as Arabs. (g) The exception to this situation is where a person has committed a crime or is a security risk. As the applicant had lived in Syria for three consecutive years without being of concern for either of those reasons, any chance that he would on return was both remote and insubstantial, and therefore there was no real chance that the applicant would face deportation [refoulement] for either reason. (h) The applicant's wife continues to live in Syria legally and is in a position to "sponsor" the applicant to return. (i) The applicant's claim that his passport was false was not accepted. There was no reason that he could not have been granted a passport in Iraq since he had not been accused of or found to be a political dissident. (j) The applicant's belated claim to have told Syrian authorities that his passport was false was not accepted. (k) By the applicant's own account the passport accurately identified him as himself, and materials established that the Syrian authorities do not require Arabs to have passports to enter the country. (l) The concerns of the Syrian authorities are security concerns, and since the applicant openly entered the country in his own name, lived there for three years and left using an exit visa through an official border control point, the international airport, he has satisfied the Syrian authorities that he does not pose a security risk and has observed all of the conditions to enter and exit the country legally. (m) There is no basis for a claim by him that Iraqi agents in Syria made it unsafe for an Iraqi in his situation to live there. (n) The applicant could be sponsored into Syria by his wife, satisfactorily identify himself to the Syrian authorities and could return to Syria. There was no real chance he could be refouled from Syria or suffer persecution there so that he has effective protection in that country. Whether failure to observe procedures 7 The first ground of appeal is that the Tribunal failed to observe the procedures required by s 430 of the Act in that it failed to set out its findings on material questions of fact and the evidence or other material on which such findings were based. This ground is relevantly particularised with reference to: (i) Failure to consider and determine the question of whether the Syrian government would permit the applicant, as an Iraqi who had previously lived in Syria and who currently had an Iranian wife and three children living in Syria, to return from Australia to reside in Syria. It is particularised that in addressing this issue the Tribunal was required to make findings of fact and set out the evidence on which the findings were based in relation to a returnee from Australia who was without papers and in the circumstances of the applicant. (ii) Failure to refer to evidence provided by the applicant's former solicitors that Syrian authorities did not accept the repatriation into Syria of persons who were not its own nationals. 8 In making its decision the Tribunal relied upon "the independent information" before it. For the respondent it is submitted that the reference to "the independent information" before it was a sufficient reference for the purpose of s 430(1)(c) of the Act. The respondent also relied upon the findings in relation to Syria including findings 10(e) and (n) above. 9 In support it is contended for the applicant that the Tribunal did not address the question of the applicant being returned by Australian authorities and the acceptability of that to Syrian authorities or the documentation on which the applicant would travel. This submission is made in reliance on Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578. There the Full Court (O'Connor, Tamberlin and Mansfield JJ) said at par 40: "The issue which, in our judgment, the Tribunal has failed to address is how Mr Sameh can reasonably travel to Iraq to access the effective protection which the Tribunal found was there available to him. It is not sufficient for the Tribunal to have found that Iraq would have admitted Mr Sameh within its boundaries if he is not reasonably able to reach those boundaries. The Tribunal found that he would be admitted to Iraq, but did not address how he might reasonably travel to those boundaries. In particular circumstances of Mr Sameh's claim that was a matter which the Tribunal was obliged to address." 10 Mr Sameh had claimed that he would face persecution for a Convention reason if he returned to Iraq by reason of his departure from there on a false passport. At par 52 the Full Court said: "as a matter of law, the Tribunal was obliged to consider whether Mr Sameh would be accepted into Jordan if he were returned there by Australia, so that he may enjoy the effective protection available to him once he is in Jordan: Koe. In our judgment, the Tribunal has not addressed that fact. The Tribunal might have been expected to determine the basis upon which Mr Sameh would now be admitted to Jordan. That might involve a decision as to whether he holds a passport which would be accepted by the Jordanian authorities. Such matters are for the Tribunal to address. It has not apparently done so." 11 Reference to the country information before the Tribunal in this matter shows the following: At a seminar on Iraq on 24 February 2000 a former assistant to the UN Special Rapporteur on the situation of human rights in Iraq said: "…Iraqis who intend to enter Syria should be sponsored either by a relative/friend residing in Syria or, by one of the Iraqi opposition parties operating in Syria. In either case, the security clearance has to be obtained in order to be communicated to the respective Syrian embassies abroad or to the airport or the immigration/security office at the official entry points from Iraq (by telegram)…" A country information report no.76/00 of 20 February 2000 CISNET CX40113 stated: "As Arabs, Iraqis entering Syria did not require a visa but did need to apply for a clearance. The clearance was usually obtained through an opposition party or family member in Syria." A country information report dated 16 March 2000 reported that the Head of Immigration and the Ministry of Interior in Syria had agreed that the Syrian authorities would assess the circumstances of Iraqi nationals who have been long term residents of Syria particularly those who married to Syrian nationals who still reside in Syria. In a country information report (CISNET document no.CX38298 dated 11 August 1999) it was observed that Syria certainly would not accept repatriations into their country of people who were not their own nationals and that there had been continuing reports of forced repatriation of Iraqi refugees and asylum seekers. 12 It is submitted for the applicant that in the light of the country information the Tribunal should have made its own inquiries or caused an inquiry to be made concerning the precise circumstances of the applicant's return to Syria. It is said that the two issues which the Tribunal has failed to state the evidence on which it relies are firstly, how he could be sponsored into Syria and secondly, how he would get to the borders of Syria except by way of a forced repatriation which, it is submitted on the country information, shows that he would not be allowed to enter. It is said that if Australia issued a one-way travel document to Syria it is apparent on the country information the applicant would not secure admission. If it does not issue that document then it is submitted his situation is the same as that of Mr Sameh in the respect in which the Full Court said the Tribunal had failed in his case. 13 The decision of the Full Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at 482 – 484 makes clear the scope of the obligation of a tribunal to set out the findings on any material questions of fact pursuant to s 430 (1)(c) of the Act and to refer to the evidence or other material on which the findings of fact were based pursuant to s 430 (1)(d). Material questions of fact pursuant to the first of those paragraphs will be questions made material by the Act and additionally by the way the Tribunal has approached the case as revealed by its reasons for decision. Even if an applicant proposes facts as material but the ultimate conclusion is not dependent upon and does not require a finding on those facts, they will not be material questions of fact for the purposes of the paragraph because the decision does not turn upon them. A fact will be material if the decision and the practical circumstances of the particular case turns upon whether that fact exists. There is, however, a distinction between material questions of fact and pieces of evidence and the obligation pursuant to the second paragraph does not require the Tribunal to refer to material which may suggest to the contrary of the conclusion which it has reached on other material before it. 14 The relevant material question of fact which the Tribunal was required to decide was whether the applicant had effective protection in Syria. It reached a view on that and set out its findings on that material question. It was not obliged to address the one piece of contrary evidence that Syria certainly would not accept repatriations of people who were not Syrian nationals and that there had been continuing reports of forced repatriation of Iraqi refugees and asylum seekers. 15 It is contended for the applicant that nevertheless the Tribunal did not "refer to the evidence… on which the findings of fact were based", s 430(1)(d) of the Act. It is accepted that the Tribunal set out all the evidence, whether supporting its finding or inconsistent with it. The submission is that in those circumstances the evidence the Tribunal relied upon can only be determined by "a reverse process" of starting with the finding then searching through the evidence to find what portions of the evidence support it, so that there is not a proper compliance with s 430(1)(d). 16 Doubtless courts and applicants would be considerably assisted if tribunals in this jurisdiction followed that approach and set out the evidence relied upon to support a finding of fact. However, when the Tribunal set out all evidence, supportive and non-supportive to the finding, and then made a finding I do not consider it contravened the requirement of s 430(1)(d). The obligation cast on a tribunal under that paragraph is to "refer" to the evidence. The Tribunal has done just that. Furthermore, in Singh at 483 the Full Court accepted that the reasons of a tribunal can be read to see what is implicit in them. Here, in its findings on the material questions of fact the Tribunal by clear implication rejected the non-supportive evidence and relied on the evidence supportive to its finding. I consider that to be a compliance with s 430(1)(d). 17 The contrary evidence in the country information report of 11 August 1999 came before the Tribunal in a letter from the applicant's solicitors received by the Tribunal on 26 April 2000. It referred to the contents of that report as cited by another Tribunal member on 1 December 1999 in decision no N99/29950. In its reasons for decision the Tribunal specifically referred to the solicitor's letter and to the country information referred to by them and additionally to that other tribunal decision. Of the other decision it said that it was one in which that applicant's circumstances differed significantly from those of the present applicant because in that case the applicant entered and remained in a UNHCR refugee camp in Syria indicating he was seeking asylum and resettlement in a third country. Prior to reaching its ultimate finding on the material question of fact the Tribunal returned to its finding that there was significant differences between the present case and the earlier tribunal decision, stating that there was no indication in that case that there was a significant and ongoing connection with the country. It is apparent that the Tribunal in the present case based its finding on the evidence of connection of the applicant to Syria. The evidence in the country information report was therefore distinguishable so that the Tribunal was, in any event, not required to further address it. 18 In my view the issues which the Tribunal's findings were required to address stand in marked contrast to the position which arose in relation to Iraq and Jordan in Sameh. Here there was not a live issue on how the applicant was actually going to return to Syria, so that the Tribunal was not obliged to make findings on it. 19 For these reasons I consider the ground based on failure of procedures is not made out. Whether incorrect test applied in respect of safe third country 20 The remaining ground addresses the concept of safe third country. It also relies on a failure to set out findings on material questions of fact as required by s 430. The ground is that there was an error of law in that the Tribunal could not have concluded Syria was a safe third country without evidence that such country would accept the return of the applicant from Australia or at least that there was no more than a remote chance the Syrian authorities would refuse to accept the return of the applicant. The ground puts the matter on the basis that it could not have been found Syria was a safe third country having regard to the evidence that Syrian authorities did not recognise refugees either by law or in practice and that Syria refouled Iraqis who committed offences irrespective of the seriousness of such offences. 21 In support of these contentions it is submitted the Tribunal did not state the evidence which it accepted or rejected in reaching its conclusion that the applicant was not at risk of refoulement. 22 It is also said that the Tribunal was in error of law in taking the view that Syria was a safe third country, notwithstanding the acceptance by the Tribunal that there is a risk of refoulement for the commission of any crime irrespective of its seriousness. It is said this manifests error because, firstly, it would indicate the Tribunal had not properly applied the "real chance" test in that a risk of refoulement for any offence however trivial would make it improper to regard the risk as remote. Secondly, it is contended a country which is prepared to refoule for minor matters would not meet the practical definition of a safe third country. 23 In oral presentation in support of these grounds counsel for the applicant referred to what was described as a substantial amount of information before the Tribunal "going both ways" on those issues. It is submitted that when making its finding that the applicant was not at risk of refoulement by the Syrian authorities to Iraq, the Tribunal did not refer to the evidence. Rather, it found that Syrians only deported or refouled Iraqis who were regarded as security concerns or committed crime and that as the applicant had not come into that category in the three years he had lived there, there was no real chance of his being deported. It is submitted that the Tribunal did not deal with, for instance, the concern that the Syrians would deport for any crime or offence, irrespective of seriousness – for example possibly a traffic offence. Included among the evidence to which the Tribunal referred was the United States Commission on Refugees 2000 Country Report on Syria in which it was said: "A 1970 Syrian presidential ordinance authorises the Ministry of Interior to deport foreigners who represent a threat to Syrian security or public order. Based on this ordinance, Syria deports foreigners, including refugees, who have committed any crime, regardless of its seriousness" 24 The nub of the submission of the applicant is that the Tribunal did not refer to the evidence on which it based its findings. It is submitted that had it done so it may well have exposed itself to a reasoning process and to the evidence that the Syrian authorities were prepared to deport for any crime irrespective of its seriousness. 25 I consider there are two answers to these contentions. The first is that the Tribunal's finding that the applicant had effective protection – for which there was evidence and on which the Tribunal made findings – was dispositive of the issue. It was not required to go further and address evidence which it rejected or which was inconsistent with the finding to which it was entitled. 26 The second is that Article 33 of the Convention imposes a negative obligation on Australia not to expel or return a refugee in any manner whatsoever to the frontiers of territories where the refugee's life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion; that is for what is described as a Convention reason. The possibility of deportation from Syria for minor criminal offences is not within the ambit of the Convention reasons prohibiting refoulement. Criminal offences involve violation of laws of general application. Furthermore there was no evidence the applicant is likely to embark on criminal conduct, serious or minor so as to oblige the Tribunal to consider the prospect. The contention also invites the Court to engage in merits review, which is the province of the Tribunal. Conclusion 27 For these reasons I consider the application should be dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson. Associate: Dated: 20 March 2001 Counsel for the Applicant: Mr H Christie Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 September 2000 Date of Judgment: 20 March 2001