Ahouidak, Adnane v Minister for Immigration & Multicultural Affairs (No 1)

[1997] FCA 1027

IN THE FEDERAL COURT OF AUSTRALIA  )  General Distribution
  )
NEW SOUTH WALES DISTRICT REGISTRY )   NG 951 of 1996
  )
GENERAL DIVISION  )

BETWEEN:  ADNANE AHOUIDAK

Applicant

AND:  MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE:        Moore J

PLACE:        Sydney

DATE:          4 September 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application is dismissed.

1. The applicant pay the respondent’ costs including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA  )  General Distribution
  )
NEW SOUTH WALES DISTRICT REGISTRY )  No. NG 951  of 1996
  )
GENERAL DIVISION  )

BETWEEN:  ADNANE AHOUIDAK

Applicant

AND:MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE:        Moore J

PLACE:        Sydney

DATE:          4 September 1997

REASONS FOR JUDGMENT

(Delivered ex tempore)

This is an application for a review of the Refugee Review Tribunal of 1 November 1996.  The Tribunal found that the applicant was not a refugee and is not entitled to protection as a refugee under the Migration Act (1958).  The Tribunal also affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  In outline, the facts by reference to which the decision was made were summarised by the Tribunal in its reasons for decision at page 5.  There the personal circumstances of the applicant are set out and I quote:

“The applicant was born in Casablanca, Morocco in 1960.  He is of Afro-Arabic ethnic origin and he is a Muslim.  His parents and five siblings live in Morocco.  He lives in Casablanca and attended university from 1985 to 1986.  He travelled to France in November 1987 and remained in France until January 1988.  He travelled to England where he stayed one month.  He applied in England to the Australian authorities for a visitor's visa to enter Australia.  He arrived in Australia on 12 February 1988.  After arriving in Australia the applicant registered his presence with the Moroccan authorities in Sydney.  He was granted an extension of his passport in July 1992 by the Moroccan authorities in Tokyo and the passport is valid to May 1997.”

An additional relevant fact was that the applicant was granted a passport in 1987 before travelling from Morocco.  Various findings of fact were made by the Tribunal including a finding, which appears at page 9 of its reasons, that the applicant is unwilling to return to Morocco. 

It is not entirely clear by reference to which provision of the Migration Act the review is sought.  However, the only matter raised by Mr Sarroff appearing for the applicant which, in my opinion, might be thought to be material concerns the approach taken by the Tribunal to the issue of the application for a passport in 1987 and its renewal in 1992.  In its reasons the Tribunal sets out material concerning the circumstances in which passports might or might not be issued of Moroccan citizens.  Without seeking to summarise that material in detail, it points to circumstances where the Kingdom of Morocco, would refrain from issuing passports to citizens of Morocco who might be under the attention of local authorities having regard to the political activities of those citizens.  The ultimate finding of the Tribunal appears at page 12, namely, that the issue of a passport to the applicant in 1987, his legal departure from Morocco, and the subsequent extension of his passport by Moroccan officials indicate that the applicant is not the target of persecution for his political opinions.

That finding founded a finding that the applicant does not have a well founded fear of convention-related persecution if he were to return to Morocco, the country of his nationality. It is of some significance that the Tribunal does not repeat in the section containing its conclusion, what appears to be an earlier finding, that the applicant does not fear persecution.  The ultimate finding of the Tribunal turns on whether that is a well founded fear.

In my view, having regard to the material by reference to which the Tribunal formed that ultimate conclusion, it was a conclusion open to it.  Although I earlier indicated the precise basis upon which the review was sought was not made clear, I am not satisfied having regard to what was put on behalf of the applicant that any reviewable error is manifest in the decision of the Tribunal. Accordingly, I propose to order that the application be dismissed.

I order that the applicant pay the respondents costs including any reserved costs.  By that last remark I intend to comprehend the costs flowing from the vacation of the hearing date on the last occasion amongst other reserved costs

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:                   

Dated:            4 September 1997      

Solicitor for the Applicant:     Mr J Sarroff of John Sarroff & Co                

Counsel for the Respondent:  Mr R T Beech-Jones

Solicitor for the Respondent:  Australian Government Solicitor

Date of Hearing:  4 September 1997