Al-Jashamy v Minister for Immigration and Multicultural Affairs

[2000] FCA 1123

FEDERAL COURT OF AUSTRALIA

Al-Jashamy v Minister for Immigration & Multicultural Affairs [2000] FCA 1123

Migration Act 1958 (Cth) s 476

AHMED ABDALLAH AL-JADAN MUTAR AL-JASHAMY
 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RYAN, MATHEWS and EMMETT JJ
8 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 515 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	AHMED ABDALLAH AL-JADAN MUTAR AL-JASHAMY Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	RYAN, MATHEWS and EMMETT JJ
DATE OF ORDER:	8 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant 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
NEW SOUTH WALES DISTRICT REGISTRY	N 515 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	AHMED ABDALLAH AL-JADAN MUTAR AL-JASHAMY Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	RYAN, MATHEWS and EMMETT JJ
DATE:	8 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from an order of a single Judge of the Court dismissing an application for a review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the respondent Minister or a delegate of the Minister refusing to grant the appellant a protection visa.

2. The learned primary Judge indicated that a number of factual matters underlay the decision of the Tribunal.  He said at p 2 of his reasons:

   “It suffices to say that Mr Al-Jashamy was born in Kuwait in 1974 and claimed to be stateless.  He and members of his family had left Kuwait for Jordan in about February 1992 and left Jordan for Saudi Arabia in 1999 from whence he had come to Australia.  The Tribunal did not accept a great deal of the evidence which Mr Al-Jashamy had given, in particular it found it to be implausible that they had driven across the Kuwait border to Saudi Arabia in 1992 without passing through a Kuwaiti checkpoint.

   The significance of this was that the Tribunal formed the view that Mr Al-Jashamy must have had at that time documentation pursuant to which he was permitted to enter Jordan legally.  I mention this matter because the solicitor for Mr Al-Jashamy had obtained a letter from the Consul in Jordan which was relied upon to demonstrate that Mr Al-Jashamy would be unable to return to Jordan.  The Tribunal took the view that that letter did not concern itself with the case of a person who had travel documents as it decided Mr Al-Jashamy did and therefore could legally enter Jordan in any event.

   By reference to the various matters with which the Tribunal dealt it found that neither in Jordan nor in Kuwait did Mr Al-Jashamy have a well-founded fear of persecution.  It found also that Mr Al-Jashamy would be able to return to either Jordan or Kuwait, these being places of habitual residence in the past.  Mr Al-Jashamy told me that he does not hold a passport or travel document and is not in a position to go anywhere.  He asks me therefore to help him as much as I can.

   The problem I have is that the Tribunal has found as a fact that he does have a travel document or travel documents and I am not in a position to overrule the Tribunal’s findings.  In any event I can only intervene if it can be established that the Tribunal has erred in law or if it could be shown that there was no evidence upon which the Tribunal could base the factual finding it made and that this factual finding was indeed significant and wrong.

   There is nothing before me that would permit me to come to that conclusion nor am I able to detect in reading the Tribunal’s reasons any error of law.  I must say that I find it difficult to see how the Tribunal reached some of the conclusions it did reach but no matter how incredulous I might be about the Tribunal’s findings of fact, that incredulity is of no assistance to Mr Al-Jashamy.”

3. Before this Full Court Mr Al-Jashamy renewed his contention that he is unable, or has no travel documents which would permit him, to return to and continue to reside in Jordan.  He also indicated that members of his family who have resided in Jordan are at imminent risk of expulsion from that country.  These additional factual matters, like those which were advanced to the learned primary Judge, are not available to assist the appellant to persuade this Court to overrule the findings of the Tribunal. 

4. The learned primary Judge expressed some puzzlement about certain of the conclusions reached by the Tribunal. It is not to the point whether this Court shares that puzzlement because, as his Honour pointed out, correctly, in our view, those matters cannot be relied on as disclosing any error of law. In the circumstances, we are compelled to agree with the learned primary Judge that there is no ground for intervention under s 476 of the Migration Act 1958 (Cth). Accordingly the appeal must be dismissed.

5. In these circumstances, for the reasons which the Court has just indicated, we shall order that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate:

Dated:             8 August 2000

The appellant appeared in person.
Counsel for the Respondent:	Mr B Skinner
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 August 2000
Date of Judgment:	8 August 2000