WABS v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1335

FEDERAL COURT OF AUSTRALIA

WABS v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1335

MIGRATION – judicial review – protection visa – findings of fact adverse to appellant’s credibility – rejection of well-founded fear of persecution for a Convention reason – review application dismissed by Federal Magistrates Court – privative clause – no viable ground of appeal – Article 1D – Article 33 – no basis for fear of persecution if returned to Syria – non-refoulment obligation not engaged – no protection obligation to appellant.

Migration Act 1958 (Cth)

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCAFC 228 cited
SBAE v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 479 cited

APPELLANT WABS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W169 OF 2002

FRENCH J
29 OCTOBER 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W169 OF 2002

BETWEEN:	WABS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	29 OCTOBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant is to pay the respondent’s costs of the appeal.

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	W169 OF 2002

BETWEEN:	WABS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	29 OCTOBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The appellant arrived in Australia from Syria without lawful authority on 11 October 2000.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 8 March 2001.  That application was refused on 27 June 2001 and on 28 June 2001, he applied to the Refugee Review Tribunal (Tribunal) for review of that decision.  On 31 October 2001, the Tribunal affirmed the decision not to grant a protection visa.  The appellant subsequently applied to this Court for review of the Tribunal’s decision.  That application was transferred to the Federal Magistrates Court by order of RD Nicholson J made on 11 April 2002.  On 10 May 2002, Raphael FM dismissed the application with costs.  The appellant then filed a notice of appeal against the Federal Magistrate’s decision.  The Chief Justice directed that the appeal be heard by a single judge. 

2. The appellant was born on 16 May 1969 at Damascus in Syria.  He is a stateless Palestinian.  He completed primary education only and worked from time to time between 1983 and 2000 as a factory labourer. From 1986 or 1988 to 1991 he was a member of the Palestinian Liberation Army based in Damascus.  He is Muslim and is not married.  His father is deceased and his mother lives in Syria.  He has three siblings each of whom lives in Syria. 

3. In his initial interview with an officer of the Department of Immigration and Multicultural Affairs held at the Port Hedland Detention Centre on 16 October 2000, the appellant was asked when he had begun to plan leaving his country of nationality.  He is recorded as having said that it was about three years previously.  He was asked why he had left his country of nationality or residence.  The answer recorded by the interviewing officer, through an interpreter, was in the following terms:

   “Socially it was difficult to deal with people.  They are not simple and easy to mix with not like before.  If you are upset with them you cannot live with them.  I do not feel comfortable.
   Secondly economic.  There is not enough employment opportunity like before.  High unemployment.
   The government is getting harder with the people.  They serve their  interest not that of the people.  If I want to apply for anything I have to bribe otherwise my job will not be accomplished. 
   No other reason.”

   Asked whether he had any reasons for not wishing to return to his country of nationality or residence, the appellant’s recorded answer was:

   “Yes I am not going back.
   Psychologically I am not settled there.  I do not feel comfortable.  It is impossible for me to go back.  I would hate to do that.  There is a lot of discrimination there.  Government officials discriminate between Syrians and Palestinians.”

   Asked to give details of his association or involvement in activities against any government or political group, he answered that he had been a PLO fighter against Israel.  Asked to give details of his association or involvement with any political group or organisation, his recorded answer was:

   “Palestinian People’s Front within the PLO.  Militia member.”

   He also claimed to have been a PLO freedom fighter in Lebanon from 1986 to 1987 and to have served with the Palestinian Liberation Army in Syria from 1988 to 1991.

4. In support of his application for a protection visa, the appellant said that between 1992 and March 2000 he was a clerk in the office of the Palestinian General Command in Damascus.  At the end of that time he was sent to Lebanon.  He believed that he would be involved in terrorist activities. He did not want to be so involved.  He said he went to Lebanon as directed and worked in the office for three days before abandoning his duties and going into hiding.  He hid for seven months while he organised his travel to Australia.  The Palestinian General Command was looking for him.  It was dangerous for him in both Lebanon and Syria.  He said that if he were returned to Syria, then because of an agreement between the Palestinian General Command and Syria he would be handed over by the Syrian authorities to the Palestinian General Command.  He would be imprisoned and might be executed.  He had many friends who did not perform their duties and they were harmed and imprisoned and some killed if considered to be traitors.  No organisation or authority could help him if the Palestinian General Command wanted him because the Syrian government cooperate with them. 

5. The appellant had an interview with a departmental officer on 11 March 2001.  In that interview he said he had joined the Palestinian Liberation Organisation in 1986 and the General Command when he finished his military training.  He said that in March 2000 he was sent on a mission to Lebanon although he was not told what it involved.  He was not prepared to wait because he had not been told what he would have to do.  After three days he left.  He said he feared he might be sent to the Israel/Lebanon border.  He did not want to be involved in fighting.  He arranged for a Palestinian travel document while still in Lebanon.  It was in a false name.  He used it to travel to Syria. 

6. Following the rejection of his application by the Department, the appellant sought review by the Tribunal.  In that application, as before the Department, he was represented by migration agents.  In their submission on his behalf they dealt first with the application of the exclusion provisions of the Refugees Convention, Articles 1D, 1E and 1F, noting that the departmental officer had not excluded the appellant from the coverage of the Convention under those Articles on the grounds of the availability of UNRWA assistance.  It was also submitted that the Tribunal should accept that the appellant was a stateless person outside his country of former habitual residence.  The appellant’s claimed harm was said to be sufficiently great to constitute persecution.  The claims relied upon were those set out in his statement previously given during immigration processing at the Port Hedland Immigration Reception and Processing Centre and in his interview with an officer of the Department.  These statements, it was said, indicated a fear of persecution for reasons of his race, nationality, political opinion and membership of a particular social group, that being an illegal expatriate.   

7. The appellant attended a hearing by video link with the Tribunal.  He was questioned by the Tribunal about his claimed involvement with the PLO.  The questioning was at times challenging putting to the appellant the Tribunal’s scepticism about various aspects of his story.  The absence of any reference in his initial interview to anything other than social and economic reasons for leaving Syria was put to him.  He said he had been scared to raise his real claims at that time. Following the Tribunal hearing, a further submission was lodged by the appellant’s adviser. 

8. After reviewing the appellant’s claims at various stages of the process the Tribunal found him to have been born in Syria, of parents who had fled Palestine in 1948.  It found him to be a stateless Palestinian whose former habitual residence was Syria and who was registered with the UNRWA. 

9. In relation to the appellant’s fear of persecution, the Tribunal found that “… the harm or mistreatment feared by the Applicant is of sufficient gravity to amount to persecution”.  It also found him to fear harm for a Convention reason.  The findings were oddly expressed having regard to what followed which comprehensively rejected his factual claims upon which his fear of persecution was said to be based.  Indeed the findings that followed amounted to a rejection of the proposition that he held any fear at all.  In context the findings as to the character of the harm and mistreatment feared and whether it was for a Convention reason were referable to the appellant’s claims and not to their truth or otherwise.  But taken literally the Tribunal’s findings in the first part of its reasoning are inconsistent with those that follow.  In the end it is reasonably clear what it was intending to say.  It is difficult to understand why the Tribunal did not actually say it.

10. The Tribunal did not accept that the appellant’s fears were well-founded.  It pointed to the limited claims of social and economic hardship made at the initial interview.  It accepted that the appellant had served in the PLO and the General Command, that he was an experienced soldier and had training as a terrorist.  It did not accept that he would have abandoned a mission to which he had been assigned or that he would have deserted the organisation which had trained him over many years.  It did not accept that, after so many years service, he would change the political views of much of his adult life because of alleged peace negotiations between the General Command and the Israelis.  It did not accept his evidence of a secret mission to Lebanon or that it was necessary for him to hide in Lebanon or that the General Command was seeking him.  This was an invention to try to strengthen his claims for a protection visa.  The Tribunal did not accept that he had any reason to depart Syria illegally or that he had departed illegally.  Moreover it was not satisfied that he would face any mistreatment by Syrian authorities that could amount to persecution for a Convention reason.

11. The Tribunal referred to a late claim that the appellant was at risk because a friend had been apprehended as an Israeli spy and handed over to Syrian authorities.  This also involved a claim that his brother had been called in for questioning.  The appellant told the Tribunal he had only recently found out about these events.  On the strength of the latest claim he said he would face life imprisonment or execution.  The Tribunal did not accept his evidence. It found that the claim had been made by the appellant in an endeavour to strengthen his claims for a protection visa. 

12. The Tribunal also concluded that because it had found the appellant not to have a well-founded fear of persecution for a Convention reason, it was not necessary to determine whether he was excluded from the protections of the Convention by Article 1D.

13. On the application for review before the Federal Magistrate, the learned Magistrate found that the discussion by the Tribunal of the reasons for coming to its unfavourable views of the appellant’s claims appeared to be properly based on the evidence said to be before the Tribunal. The learned Magistrate then referred to s 474 of the Migration Act 1958 (Cth) and the divergent views about its operation in the Federal Court at that time. His decision was given prior to the decision of the Full Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. He took the approach most favourable to applicants for review reflected in the judgment of Mansfield J in SBAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 479. He was nevertheless unable to find in the Tribunal’s reasons any matter which would disclose error reviewable under s 39B of the Judiciary Act 1903 (Cth). On that basis the application was dismissed by the learned Magistrate.

14. On the hearing of the appeal, the appellant was represented by Professor J O’Donovan on a pro bono basis. Professor O’Donovan indicated that he had carefully reviewed the papers and, in light of the limited jurisdiction of the Court in this area, informed the Court that he had no submissions to make in relation to the appeal. He had no submissions as to whether the decision of the Tribunal constituted a bona fide attempt to exercise the power conferred on the Tribunal. The Court is grateful to Professor O’Donovan for his assistance. The Court’s own consideration of the reasons of the Tribunal and of the learned Magistrate in the light of the operation of the privative clause, s 474 of the Migration Act, and in the light of the decision of the Full Court in NAAV, does not disclose any arguable basis for review. 

15. The preceding conclusion takes into account that Article 1D of the Convention may apply to the appellant.  That Article, in its first limb, does not necessarily exclude him from the protection of the Convention.  However, given the unreviewable finding that the appellant did not in truth have a well-founded fear of persecution for a Convention reason, there is no question of a protection obligation owed to him by Australia as there is no basis for the application of the non-refoulment obligation under Article 33.  This is so even if the most favourable view of the second paragraph of Article 1D is taken that the appellant is automatically entitled to be treated as a refugee once outside the area covered by UNRWA.

16. In my opinion, the appeal should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Acting Associate:

Dated:            29 October 2002

Counsel for the Appellant:	Professor J O'Donovan (Pro bono)
Counsel for the Respondent:	Ms LB Price
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	23 October 2002
Date of Judgment:	29 October 2002