S115/00A v Minister for Immigration and Multicultural Affairs - [2001] FCA 540

FEDERAL COURT OF AUSTRALIA
S115/00A v The Minister for Immigration and Multicultural Affairs [2001] FCA 540
MIGRATION - refugees - application for protection visa - refoulement to third country - scope of s 36(3) of the Migration Act - effective protection notwithstanding no legally enforceable right to enter and reside.
PRACTICE AND PROCEDURE - whether futile to remit for reconsideration.
Migration Act 1958 (Cth) ss 36(3), 476(1)(e) and (g)
Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 followed
Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 referred to
Minister for Immigration and Multicultural Affairs v Al-Sallal [1999] FCA 1332 referred to
Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 referred to
Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554 referred to
Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 referred to
Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 referred to
Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 referred to
Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 referred to
Santa Sabina College v Minister for Education (1985) 58 ALR 527 referred to
Minister for Immigration and Multicultural Affairs v Jia [2000] HCA 17 referred to
S115/00A v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
S115 of 2000
FINN J
10 MAY 2001
CANBERRA (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S115 OF 2000

BETWEEN:

S115/00A
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

10 MAY 2001

WHERE MADE:

CANBERRA (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:
1. The application be allowed.
2.The decision of the Refugee Review Tribunal dated 14 September 2000 be set aside.
3.The matter be remitted to a differently constituted Tribunal for reconsideration according to law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S115 OF 2000

BETWEEN:

S115/00A
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

FINN J

DATE:

10 MAY 2001

PLACE:

CANBERRA (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

This is an application for an order of review under Part 8 of the Migration Act 1958 (Cth) ("the Act") of a decision of the Refugee Review Tribunal ("Tribunal") dated 14 September 2000. The Tribunal's decision was that it was not satisfied that the applicant, an Iraqi national, was a refugee, and affirmed the decision not to grant a protection visa. This decision was not based upon any direct consideration of whether the applicant had a well-founded fear of persecution in Iraq but, seemingly, was founded on the Tribunal being satisfied that he had a right to return to a third country (ie Syria) where he enjoys effective protection and in which he did not face either persecution for any Convention reason (ie the 1951 Convention relating to the Status…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 540
Decision Date: 10 MAY 2001

CaseChat Overview and Summary

The case S115/00A v Minister for Immigration and Multicultural Affairs involved a claimant who sought a protection visa in Australia. The claimant, an Iraqi national, alleged that he was unable to return to Iraq due to a well-founded fear of persecution. He claimed that he had been subjected to threats by Iraqi intelligence agents while residing in Syria and was concerned about potential detection by Syrian authorities or Iraqi agents. The claimant also stated that he had conducted his business and rental activities under others' names to avoid detection. The matter was brought before the court to determine the validity of the claimant's asylum application.

The court had to address several key legal issues in this case. The primary issues were whether the claimant had effective protection in Syria without the risk of refoulement to Iraq and whether he had a well-founded fear of persecution in relation to Syria. The court also had to consider the applicability of recent legislative amendments to section 36 of the relevant Act. These amendments introduced new provisions that impacted the assessment of the claimant's case. The court examined country information about Syria, including statements from a senior official of Syria's Ministry of the Interior, which indicated Syria's willingness to cooperate with Australia and the criteria for the readmission of Iraqis to Syria.

The court concluded that the legislative amendments applied to the claimant's case and that the Tribunal had not adequately considered the new provisions when making its decision. The Tribunal's focus on the country information without applying the legislative amendments was deemed inappropriate. The court found that the Tribunal's decision was flawed as it did not properly address the legal issues and the new provisions introduced by the amendments. Consequently, the court allowed the application, set aside the Tribunal's decision, and remitted the matter to a differently constituted Tribunal for reconsideration according to law.

Orders

Orders of the court

1. The application be allowed.

2. The decision of the Refugee Review Tribunal dated 14 September 2000 be set aside.

3. The matter be remitted to a differently constituted Tribunal for reconsideration according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINN J

He said he did not approach the offices of UNHCR as he feared he would be detected by the Syrian authorities or be monitored by Iraqi intelligence agents who were known to have killed some Iraqis in Syria. He said that he felt relatively safe in the village where he resided on the outskirts of Damascus, but not in the centre of the capital. He claims that his business and home rental accommodation were let in others' names so he would not be detected, and he only operated his business casually for about three months of the year when many Shia pilgrims came to the area. He also claims that shortly before his departure for Australia some people whom he identified as Iraqi intelligence agents came to his shop and abused him and caused him to be fearful for his own and his family's safety. He said that he and his wife had a religious ceremony for their marriage, but did not register their union. He said that his wife entered Syria legally, but she faces deportation now as she has overstayed in Syria. He alleges that the new leadership in Syria has placed stricter limits on the time Iraqis can stay in Syria and that letters received by friends report an increasing number of Iraqis are being deported from Syria.The Tribunal's Decision Having referred to the applicant's claims the Tribunal turned to what it considered to be the "[k]ey issues for consideration". These it indicated to be:"whether the applicant has effective protection in Syria without risk of refoulement to Iraq and whether or not he has a well-founded fear of persecution in relation to Syria."It went on to note the principal case law from Thiyagarajah's case to Al-Sallal's case. It then stated that "[r]elevantly, Section 36 of the [Act] had three new provisions added to it". It cited s 36(3), (4) and (5) and quoted from the Explanatory Memorandum to, and second reading speech on, the amending Bill. And it concluded:"[t]he aforementioned amendments to s 36 apply to the present applicant who lodged an application for a protection visa in March 2000." Thereafter it devoted six pages to "country information" for Syria. The burden of much of that information was encapsulated in a Department of Foreign Affairs and Trade document of 29 March 2000 in which a senior official of the Immigration section of Syria's Ministry of the Interior:" … confirmed that Syria was very willing to cooperate with Australia, including with returnees. Hariry [the official] reaffirmed earlier advice … that return of Syrian nationals was straightforward. With regard to Iraqis, he said Syria was prepared to consider readmission of Iraqis to Syria and repatriation of Iraqis via Syria on a case by case basis. In cases, the legal entry and exit of Iraqis to/from Syria was critical. Syria would not consider cases where Iraqis had entered or exited Syria illegally.General Hariry indicated that readmission of Iraqis to Syria would only be considered where they were either married to Syrian nationals who still lived in Syria or had other strong connections. These were the only Iraqis Syria would consider for long term stay and each case would be considered on its merits". (DFAT, 192/00, 29 March 2000).

Ratio Decidendi

Legal Principle Established

Established by: FINN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S115 OF 2000

BETWEEN:	S115/00A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	10 MAY 2001
WHERE MADE:	CANBERRA (HEARD IN ADELAIDE)

JUDGE:	FINN J
DATE:	10 MAY 2001
PLACE:	CANBERRA (HEARD IN ADELAIDE)