WAEI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 334 (8 November 2002)

Last Updated: 19 November 2002

FEDERAL COURT OF AUSTRALIA

WAEI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 334

MIGRATION - Appeal from single Judge dismissing an application for review of decision of Refugee Review Tribunal ("RRT") - RRT affirmed decision of delegate not to grant protection visa to appellant - RRT not satisfied that appellant had experienced treatment amounting to persecution for a Convention reason - application of Article 1(D) of the Refugee Convention - whether expression "ipso facto" in Article 1(D) confers an entitlement on appellant to a protection visa

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329 referred to

WAEI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W 30 OF 2002

HILL, MOORE AND TAMBERLIN JJ

SYDNEY (HEARD IN PERTH)

8 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 30 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WAEI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HILL, MOORE AND TAMBERLIN JJ
DATE OF ORDER:	8 NOVEMBER 2002
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W 30 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WAEI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	HILL, MOORE AND TAMBERLIN JJ
DATE:	8 NOVEMBER 2002
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

HILL J:

1 I have read the judgment of Tamberlin J and for the reasons which I have given in Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329, I am of the view that protection obligations do not automatically arise under the second paragraph of Article 1(D) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Thus, as the appellant does not fall within the definition of "refugee" in Article 1A(2) of the Convention, the appeal must be dismissed with costs.

2 I agree also with Tamberlin J that no error has been shown to exist in the decision of the Tribunal or that of the primary judge and it is neither necessary or appropriate in the present case to consider the operation of the privative clause provision of s 474 of the Act.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate: Dated: 8 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 30 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WAEI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	HILL, MOORE AND TAMBERLIN JJ
DATE:	8 NOVEMBER 2002
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

MOORE J:

3 I agree with the reasons and orders of Tamberlin J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 8 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 30 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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

JUDGES:	HILL, MOORE AND TAMBERLIN JJ
DATE:	8 NOVEMBER 2002
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

TAMBERLIN J:

4 This is an appeal from a judgment of French J dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT") on 11 October 2001 which affirmed a decision of a delegate of the Minister of Immigration and Multicultural and Indigenous Affairs ("the Minister") refusing to grant a protection visa to the appellant under the Migration Act 1958 (Cth) ("the Act").

5 The appellant is a stateless Palestinian who was born in Libya in 1974 to Palestinian refugees and has lived in Syria since 1982. He arrived in Australia on 22 December 2000. His application for a protection visa was refused by a delegate of the Minister on 26 June 2001. The appellant claims that he is a "refugee" within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention") as being a person who:

"... 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; 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."

6 The appellant's claim before the RRT was that he had lived with his family in Syria and worked as a poultry breeder between 1992 and 2000 with his father's poultry company. His father also owned a poultry farm, next to which a businessman had built a house that was the subject of a dispute in relation to smells emanating from the poultry farm. The Syrian Health authorities dismissed the neighbour's complaint in relation to the smells, and the appellant claims that he was thereafter abducted by five men on 9 August 2000, taken away, tortured and accused of insulting the Syrian Government. He was released on 15 October 2000 but before his release he was forced to sign a statutory declaration restricting his movements in and out of the country and his freedom to travel within the country. He made arrangements to leave Syria illegally and used his United Nations Palestinian travel documents to depart from Syria on 4 November 2000. He claimed that he cannot return to Syria because his family had told him that the Syrian authorities had come to his house to search for him and issued a warrant for his arrest for breaking his undertaking not to leave the country.

7 The RRT did not accept that the appellant had a well-founded fear of persecution for a Convention reason. It considered that important parts of his story had been fabricated. In particular, it did not accept that only a short period of detention would have occurred if he had been suspected of involvement in political activity and that he would have been released in the way in which he claimed. The RRT rejected the claim that he was arrested and tortured. It did not accept that the appellant was wanted by the authorities for alleged involvement in activity against the government. It considered that even if the appellant was arrested or detained it was not because he had spoken out against the regime but because of his neighbour's ability to use political influence to intimidate the appellant. The RRT did not accept that his departure from Syria was illegal nor did it accept that the poultry farm had been closed down by Syrian authorities. It concluded that it was not satisfied that he had experienced any treatment that would amount to persecution for a Convention reason. In support of this view it observed that the appellant had completed twelve years of education and a vocational course of study in Syria and had his own apartment and a car. He also had a position managing the family poultry farm and he could obtain employment even if not on the poultry farm.

8 In dismissing the application to the Court French J summarised his reasoning as follows at [13]:

"As can be seen from this outline of the Tribunal's findings, essentially it did not believe the applicant's story. The applicant has made some submissions to the Court which call into question some of the Tribunal's findings. However, the Court has no power to interfere with the Tribunal's decision, even if it disagrees with its findings of fact. None of the matters advanced by the applicant shows any ground upon which the Court can interfere with the Tribunal's decision, nor on my own reading of the Tribunal's decision does it appear that any such ground exists. The application will be dismissed and the applicant is to pay the respondent's costs of the application."

9 On the appeal the appellant was granted leave to raise a new ground of appeal based on the operation of Article 1(D) of the Convention which provides:

"This Convention shall not apply to persons who are at present receiving from organs or agencies of the United 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." (Emphasis added)

10 The appellant submitted that he came within the provisions of the second paragraph of Article 1(D) and was therefore automatically entitled to the "benefits of this Convention". It was submitted that the reference to persons being ipso facto entitled to the benefits of the Convention meant that he must be accepted as having protection as a refugee if he satisfied the requirements of the second paragraph although, in fact, he did not satisfy the requirements of the definition set out in Article 1(A). In written submissions for the appellant it was conceded that the appeal must fail if the Court is persuaded that the reference in Article 1(D) to the benefits of the Convention requires a person to satisfy the Convention definition in Article 1(A).

11 For the reasons I gave in Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329, I do not consider that the reference to the "benefits of the Convention" means that protection obligations arise although the applicant is not on the material within the definition of "refugee" in Article 1(A) of the Convention. In this case, that requirement to come within the definition of "refugee" has not been satisfied. The RRT reasons are based on questions of fact and degree and do not disclose any reviewable error of principle or law. No error has been shown to exist in the decision of the RRT or that of the primary Judge and it is neither necessary or appropriate in the present case to consider the operation of the privative clause provisions of s 474 of the Act.

12 Accordingly, the appeal should be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 8 November 2002

The appellant appeared in person.
Counsel for the Respondent:	P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 May 2002
Date of Judgment:	8 November 2002