FEDERAL COURT OF AUSTRALIA Mawed v Minister for Immigration & Multicultural Affairs [2001] FCA 1680 MIGRATION – application for protection visa – no point of principle Migration Act 1958 (Cth) ss 14, 65, 36(2) Convention relating to the Status of Refugees, Article 1(D) Minister for Immigration and Multicultural Affairs v Quiader [2001] FCA 1458 referred to JAMAL SAEED MAWED v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 120 of 2001 LEE J 28 SEPTEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 120 OF 2001 BETWEEN: JAMAL SAEED MAWED APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE J DATE OF ORDER: 28 SEPTMEBER 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 120 OF 2001 BETWEEN: JAMAL SAEED MAWED APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE J DATE: 28 SEPTEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision by the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent ("the Minister") that a protection visa not be granted to the applicant. 2 The applicant, 40, is a stateless Palestinian born in Syria. He arrived in Australia on 10 October 2000 as an "unlawful non-citizen", as defined by s 14 of the Act. Pursuant to s 189 of the Act the applicant was taken into "immigration detention" where he has remained. On 24 October 2000 the applicant applied for a protection visa, the grant of which was refused by a delegate of the Minister on 10 January 2001. 3 Determination of an application for a visa is governed by s 65 of the Act, which provides that if the Minister is satisfied that, inter alia, the criteria prescribed for a visa by the Act or the regulations have been satisfied, the Minister is to grant the visa but if the Minister is not so satisfied the grant of the visa is to be refused. 4 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 5 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as the "Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and the "Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Act and is not a term used in the Convention. 6 The Convention is a treaty under which the "Contracting States" have agreed to apply the provisions of the Convention to "refugees." Article 1(A) of the Convention provides the following definition of "refugee": "For the purposes of the present Convention, the term 'refugee' shall apply to any person who:…(2)…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;…" 7 Exception to, or cessation of, the operation of the Convention is set out in, inter alia, Articles 1(C), (D), (E) and (F). Article 1(D) provides that: "This Convention shall not apply to persons who are at present receiving from organs or agencies of the Untied 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." 8 The applicant's claims, were as follows. The applicant was born in Syria to parents who were Palestinian refugees who had fled from Palestine during the 1948 Arab-Israeli conflict and not permitted to return. The applicant was registered under the United Nations Relief and Works Agency ("UNRWA") concerned with alleviation of the plight of approximately 3.7 million registered Palestinian refugees in Syria and other neighbouring countries. He had been educated at UNRWA schools established in Palestinian refugee camps but had not been a recipient of ongoing UNRWA assistance thereafter. Counsel for the Minister informed the Court that it was accepted that the applicant was not a person to whom Article 1(D) of the Convention applied rendering him ineligible to apply for a protection visa. (See: Minister for Immigration and Multicultural Affairs v Quiader [2001] FCA 1458). Whilst the applicant resided in Syria, he held a Palestinian identification card and a Palestinian travel document (although the travel document was for the purposes of travel to the United Arab Emirates). The applicant attended school to 14 years of age. For two years the applicant was self-employed as a painter before, in 1976, joining the Al-Fatah movement led by Yassar Arafat. Upon joining Al-Fatah the applicant served in Lebanon and United Arab Emirates before undertaking compulsory military service in 1979 as a driver for the Syrian army in Lebanon. Upon being discharged from the Syrian army in mid-1983, the applicant resumed working for Al-Fatah, as a captain in the security branch. At the end of 1983 the applicant was detained and interrogated, by the General Command of the Palestine People's Liberation Front (an organisation supported by Syria), for 21 days for being a member of Al-Fatah, which, due to Arafat's 'peace talks' with Israel, was accused of being a traitor to the Arab cause. The applicant said that after this event he could not live permanently at his house in the refugee camp in Damascus, and spent most of his time working for Al-Fatah in Lebanon. The applicant returned to the camp in Damascus, where the applicant's family resided, for two or three days at a time at least three times a year by travelling to the Lebanese-Syrian border and then walking through the mountains to the camp. This situation continued until September 2000 when the applicant fled Lebanon and travelled to Australia on a forged Lebanese passport with an exit stamp obtained by means of a bribe. The reasons the applicant fled were that the Syrian army had increased its control in southern Lebanon and he risked being arrested because of his association with Al-Fatah. The applicant said that as a Palestinian refugee he had to stay inside Syria and was not permitted to go to Lebanon, and that he was certain to be arrested on false charges and detained by the Syrian authorities if he were to return to Syria. 9 In its reasons the Tribunal stated that the applicant "disclosed a completely new claim at the hearing". The applicant said that the Syrian authorities wanted him over a wrongly-perceived affiliation with the Abu Nidal faction of Al-Fatah, the Al-Fatah Revolutionary Council. Whether this was in fact a "new claim" or whether it was merely an explanation as to the applicant's previously-stated fear of returning to Syria is not clear from the material before the Court. The Tribunal concluded that in any event the Al-Fatah Revolutionary Council appeared to be a spent force, particularly in Syria. With regard to the relations between Syria and Al-Fatah the Tribunal said as follows: "The Tribunal put it to the Applicant that it could find no evidence of Syrian authorities arresting Palestinians merely on suspicion of their being Fatah members. In reply, he said arrests started in 1985. His response is consistent with independent evidence but the problem is that, whilst the tribunal could find a lot of evidence of the cooling in relations between the Syrian government and Arafat's faction in the early and mid-1980s, it could find no evidence of the relationship being even nearly as hostile today. More to the point it could find no evidence of Syrian authorities arresting or detaining suspected Fatah members in or since the late 1990s. The Tribunal provided the Applicant with time to make further submissions on all the matters addressed in the hearing. His and his adviser's research on the matter yielded no independent evidence of such treatment of Fatah supporters in Syria. … More to the point, the Tribunal found evidence of a thaw in the relationship between Fatah and the Syrian government since the mid-1990s. … … Asked to give evidence of Syria's hostility towards Fatah, the Applicant cited an event dating back to 1991 when four Fatah members were arrested over the bombing of a Syrian checkpoint. This evidence appeared to add nothing to his position for it involved a seemingly justifiable response on Syria's part to alleged terrorism. …" 10 The Tribunal found that even if the applicant's claim were accepted, he did not face a real chance of Convention-related persecution in Syria, its reasons being expressed as follows: "The Tribunal accepts that the Applicant is a supporter of Arafat's Fatah organisation and of its objectives. The Tribunal accepts that the Applicant was arrested and detained for questioning for 21 days in 1983, back when the distinction between factions of Fatah were less common and less understood. The Tribunal finds that the Applicant was released without condition and that he was not subsequently repressed, harassed, constrained or threatened by Syrian authorities over any of the issues that motivated his arrest in the first place. The Tribunal concludes that, given the circumstances of the Applicant's release, the lack of any unhappy sequels and the subsequent 17-year trouble free gap, it would be illogical to accept that what happened to the Applicant for those 21 days in 1983 could in any way contribute to a real chance of his being persecuted by Syrian authorities in the reasonably foreseeable future. The indications are that the Syrian authorities must have decided in 1983 that the Applicant was not someone on whom they needed to spend any more time. … The Tribunal is all the more confident in its conclusions about the Applicant's standing with the Syrian authorities as a member of Fatah because the relationship between Syria and Fatah was not permanently so hostile. It evidently eased up considerably from the mid-1990s onwards…" 11 On the hearing of the application for review the applicant appeared in person. The applicant was unable to explain how a ground for review arose under s 476 of the Act. The applicant stated in his application that he was a 'real Palestinian', that the Tribunal didn't consider his claims, and that he would like his case to be considered differently. At the hearing, the applicant pointed to what he appeared to consider was an illogicality in the Tribunal's reasoning as to the implausibility of the applicant's evidence. However, as set out above, the Tribunal's decision did not turn on that reasoning. The applicant also raised concerns as to events that had occurred in the detention centre since the applicant's arrival in Australia that added to his fear of returning to Syria. The applicant was informed that those matters had no bearing on the application for review dealt with by this Court although they may provide grounds for the applicant to seek the permission of the Minister to make another application for a protection visa. 12 No ground for review of the Tribunal's decision allowed by s 476 of the Act has been made out by the applicant. Accordingly, the application for review must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 28 September 2001 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 September 2001 Date of Judgment: 28 September 2001