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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 claims made by appellant relating to harassment by Syrian authorities resulted from racial or political prejudice - no reviewable error of law found by primary Judge - 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.

WACG v Minister for Immigration and Multicultural Affairs [2002] FCAFC 332

WACG v Minister for Immigration and Multicultural Affairs [2002] FCAFC 332 (8 November 2002)
Last Updated: 19 November 2002


FEDERAL COURT OF AUSTRALIA
WACG v Minister for Immigration and Multicultural Affairs [2002]

FCAFC 332

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 claims made by appellant relating to harassment by Syrian authorities resulted from racial or political prejudice - no reviewable error of law found by primary Judge - 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.

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

WACG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 541 OF 2001

HILL, MOORE AND TAMBERLIN JJ

SYDNEY (HEARD IN PERTH)

8 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W 541 OF 2001





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

BETWEEN:
WACG

APPELLANT


AND:
MINISTER FOR IMMIGRATION

AND MULTICULTURAL 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 cost 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 541 OF 2001





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

BETWEEN:
WACG

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND 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.

I certify that the preceding one (1) numbered paragraph is 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 541 OF 2001





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

BETWEEN:
WACG

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
HILL, MOORE AND TAMBERLIN JJ


DATE:
8 NOVEMBER 2002


PLACE:
SYDNEY (HEARD IN PERTH)





REASONS FOR JUDGMENT
MOORE J:

2 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 541 OF 2001





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

BETWEEN:
WACG

APPELLANT


AND:
MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
HILL, MOORE AND TAMBERLIN JJ


DATE:
8 NOVEMBER 2002


PLACE:
SYDNEY (HEARD IN PERTH)





REASONS FOR JUDGMENT
TAMBERLIN J:

3 This is an appeal from a judgment of French J dismissing an application for review of a decision made by the Refugee Review Tribunal ("the Tribunal"), given on 25 July 2001, which refused an application to grant a protection visa. The appellant is a stateless Palestinian, born and resident in Syria, and registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East ("UNRWA").

4 The Tribunal referred to 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") and registered concern as to the asserted operation of that provision but reserved consideration of that issue for "another time".

5 The Tribunal approached the application for a protection visa by considering whether the appellant was a refugee within the well-known definition provided under Article 1(A)(2) of the Convention.

6 The decision of the Tribunal turned largely on the issue of credibility in relation to the appellant's claims of being targeted by Syrian security forces and being exposed to significant harassment. Extensive reference is made by the Tribunal to independent country information and to the appellant's personal history, particularly to the consequences of a lack of membership of the Ba'ath Party. The Tribunal was not satisfied that assertions made in relation to the appellant's harassment by Syrian security forces resulted from any ethnic, racial or political prejudice. The reasons for decision of the Tribunal set out in detail and with specificity the reasons for which it did not accept the claims made. The Tribunal was not satisfied that the appellant had been dismissed from his employment for a Convention reason or that he left Syria out of a fear of persecution. The conclusion of the Tribunal was that the appellant was not a person to whom Australia had protection obligations.

7 The determinations of the Tribunal are based on questions of fact and the only challenge made to the reasoning of the Tribunal before the primary Judge was on the basis that the factual findings were wrong. It is not for the trial Judge, nor for this Court on appeal, to make a decision on the correctness of the factual findings made by the Tribunal. The task of the primary Judge was to see if there had been any reviewable error of principle. His Honour was not satisfied that any error had been demonstrated because the decision of the Tribunal was one that it was entitled to take on the material before it. I can see no error in the approach taken by, and in the reasoning of, the primary Judge or in the approach taken by the Tribunal.

8 On the appeal the appellant was granted leave to file a substituted Notice of Appeal in which a ground is raised to the effect that the primary Judge had erred in law in so far as his Honour accepted that the appellant was a stateless Palestinian registered with UNRWA and was not presently receiving protection or assistance from that body, but failed to find that he was a person to whom Australia owed protection obligations by virtue of Article 1(D) of the Convention. In written submissions in support of the appeal, it is conceded, on behalf of the appellant, that the appeal can only succeed if the Court is persuaded that the expression in Article 1(D) referring to persons "ipso facto entitled to the benefits of the Convention" equates to the existence of protection obligations on the part of Australia to the appellant.

9 In order to make good this submission it is necessary to conclude that the reference to persons being ipso facto entitled the benefits of the Convention means that the appellant must automatically be accepted as a refugee if he satisfied the requirements of the second paragraph of Article 1(D) although in fact he may not satisfy the requirements of the definition of "refugee" set out in Article 1(A).

10 For the reasons which 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 must automatically arise in relation to a Palestinian in circumstances where the applicant is not on the material before the Tribunal within the definition of "refugee". In the present case the requirement to come within the definition of "refugee" has not been satisfied. No error has been shown to exist in the decision of the Tribunal or that of the primary Judge.

11 Accordingly, the appeal is 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

Counsel for the Appellant:
T Carmady






Solicitor for the Appellant:
Williams & Hughes






Counsel for the Respondent:
L B Price






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
22 May 2002






Date of Judgment:
8 November 2002


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