Al-Jashamy v Minister for Immigration and Multicultural Affairs

[2000] FCA 673

FEDERAL COURT OF AUSTRALIA

Al-Jashamy v Minister for Immigration & Multicultural Affairs [2000] FCA 673

AHMAD ABDALLAH AL-JADAAN AL-JASHAMY v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 161 of 2000

HILL J
12 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 161 OF 2000

BETWEEN:	AHMAD ABDALLAH AL-JADAAN AL-JASHAMY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	12 MAY 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Mr Al-Jashamy, applies to the Court for judicial review of a decision made by the Refugee Review Tribunal (“the Tribunal”) affirming the decision of the Minister for Immigration and Multicultural Affairs (“the Minister”) or a delegate of the Minister that he not be granted a protection visa.

2. The applicant was not represented before me but was assisted by an interpreter.  Before the Tribunal he had been represented by a solicitor from Legal Aid.  Mr Al-Jashamy says that the solicitor informed him that he might win or lose in the Federal Court.  The solicitor did not apparently say to him, so he says, that he would not represent him in the application to the Court.  Correspondence which has been produced to me by the Australian Government Solicitor indicates that the solicitor who had appeared for Mr Al-Jashamy had told the officer from the Australian Government Solicitor that he would not represent Mr Al-Jashamy and that he had told Mr Al-Jashamy that he would not.  It is I suppose possible that the solicitor intended to tell Mr Al-Jashamy but did not. 

3. I asked Mr Al-Jashamy whether he wished to have the hearing adjourned this afternoon. He replied that he wished to have the matter heard. I explained to Mr Al-Jashamy that the jurisdiction of the Court was extremely restricted. I explained to him that the provisions of s 476 of the Migration Act 1958 (“the Act”) which set out the grounds of review do not permit this Court to consider factual questions, at least in the ordinary case, and that generally speaking the Tribunal is the final arbiter of factual matters.

4. I indicated to him that in essence the jurisdiction of the Court was limited to what might generally be said to be questions of law.  Mr Al-Jashamy is not a lawyer and I understand the difficulty that he would have in endeavouring to ascertain whether the Tribunal had erred in law.

5. Mr Al-Jashamy submitted that before he had arrived in Australia he had read that Australia was one of the countries which would accept stateless people.  He said that Australia had granted other Bedouins residency.  If this was the case he said he was stateless and had not held any citizenship anywhere and in consequence would be eligible for residency in Australia. 

   The issue which arose in the Tribunal was whether the Tribunal was satisfied that Mr Al-Jashamy was a person to whom Australia owed protection obligations.  Essentially Australia owes protection obligations to persons who come within the definition of refugee in the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  A refugee is defined in the Convention as any person who:

   “owing to a 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, is unable or owing to such fear is unwilling to return to it.”

6. It is unnecessary for me to deal in detail with the factual matters, the subject of the Tribunal’s 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. Mr Al-Jashamy has not made out any ground of review which would permit the Court to intervene pursuant to s 476 of the Act. I have thus no alternative but to dismiss the application.

12. I order the applicant to pay the Minister’s costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:             12 May 2000

The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 May 2000
Date of Judgment:	12 May 2000