Alhaja v Minister for Immigration and Multicultural Affairs

[2001] FCA 1337

FEDERAL COURT OF AUSTRALIA

Alhaja v Minister for Immigration & Multicultural Affairs [2001] FCA 1337

MOHAMMED HUSSEIN ALHAJA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 193 OF 2001

HILL J
24 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 193 OF 2001

BETWEEN:	MOHAMMED HUSSEIN ALHAJA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	24 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the costs of the respondent Minister.

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 193 OF 2001

BETWEEN:	MOHAMMED HUSSEIN ALHAJA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	24 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant, Mr Mohammed Hussein Alhaja, is of Palestinian background, although he has lived, apparently, in Syria all his life.  He is, as the Tribunal found, a stateless Palestinian from Syria who, after arrival in Australia in September 2000, lodged an application for a protection (class XA) visa on 24 September 2000.  His application was refused and he applied to the Refugee Review Tribunal (the “Tribunal”) for review of that decision. 

2. It is a criterion for the grant of a protection visa that the person deciding whether such a visa should be granted be satisfied that the applicant is a person to whom Australia has protection obligations.  Generally speaking, Australia has protection obligations to a person who is a “refugee” as defined in the 1951 United Nations Convention Relating to the Status of Refugees as modified by the 1967 Protocol Relating to the Status of Refugees (herein referred to as the “Convention”).  A refugee is defined as 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 …”

3. The Tribunal found that the applicant’s country of former habitual residence was Syria and that neither Article 1D nor 1E of the Convention excluded him from being considered to be a refugee or otherwise entitled to the benefits of the Convention.  The significant issue before the Tribunal was whether the applicant had a well‑founded fear of persecution in Syria on a ground described in the Convention. 

4. It was Mr Alhaja’s case before the Tribunal that he had no involvement in political groups or activities in Syria, but nevertheless that he had had problems with the Syrian authorities on two occasions (the “two problems”).  The first occasion was in 1994 when he claimed to be involved in a dispute with a neighbour who was a friend of one of the sons of the Syrian President.  The second occurred, he said, in 1999 (the reference in the Tribunal’s reasons to 1999 may perhaps be 2000) as a result of his relationship to a Palestinian lawyer who was said to be associated with Al Fatah al Assifa.  The details of these two problems are set out in the Tribunal’s Reasons for Decision under the headings “1994 Problems” and “June 2000 problems”. 

5. The Tribunal accepted Mr Alhaja’s further claim that he had been detained without charge for some two weeks in 1994.  It took the view, however, that the detention had nothing to do with any Convention reason.  More importantly, the Tribunal was of the view that no continuing problems with the Syrian authorities arose out of either of the two problems.  The Tribunal did not accept that Mr Alhaja was detained in June 2000 because of his association with the lawyer, Mr Abu-Meilaq.  The Tribunal’s findings on this part of the claim turned upon the fact that it did not accept Mr Alhaja’s evidence, much of which it found to be not true.  Some of Mr Alhaja’s evidence the Tribunal found to be quite confused and unconvincing.  In part, indeed, the Tribunal found that Mr Alhaja was making up his evidence on the spot. 

6. Accordingly, the Tribunal was not satisfied that Mr Alhaja had problems with the Syrian authorities, whether because of his own political opinion or because of a political opinion imputed to him.  The Tribunal was, therefore, not satisfied that he had a well-founded fear of persecution in Syria for a Convention reason. 

7. Mr Alhaja applied to the Court for judicial review of the Tribunal’s decision.  The application gave no particulars of the grounds of review.  I have sought to explain to Mr Alhaja that the jurisdiction of this Court is limited to the grounds set out in the Migration Act 1958 (Cth). Particularly, I have sought to explain to him that the Court cannot engage in an assessment of the merits of his case.

8. Mr Alhaja was not represented before me, although he had the assistance of an interpreter.  He made the following points to me: 

   (1)That he objected to the fact that he had been put into prison for a year (detention in a detention centre in Australia) when he had done nothing wrong.

   (2)That he wished to be sent back to Palestine, which was his country, and from which country he has a Palestinian passport.

   (3)That Syria was not his country but that two members of his family were in prison there because of him.

   (4)That the Tribunal had failed to believe him, but that in so doing the Tribunal was not fair.  Rather, he said that the reports or, perhaps, evidence which he had submitted to the Tribunal were all true and not imaginary.

   (5)That the Tribunal had thanked him for the reports he had given it and their accuracy, but ultimately had just not believed them. 

   (6)That I could judge for myself the accuracy of what he had said and for the first time give him a fair and just result.

9. None of these matters is a ground upon which I could intervene and set aside the Tribunal’s decision.  Whether or not it is appropriate for Australia to put people in detention while awaiting the outcome of their cases, this cannot found a ground of judicial review.  It may well be, however, that there is an argument that Australia is in breach of its international obligations to do so.  The argument, however, would not avail Mr Alhaja in this Court.

10. Because Mr Alhaja is not represented I have read carefully the Tribunal’s reasons.  The Tribunal’s decision largely depended upon its assessment of Mr Alhaja’s credit.  The question whether an applicant is to be believed is a matter peculiarly for the Tribunal.  Whether or not the outcome was unfair and unjust as Mr Alhaja believes is not a matter that I can take into account.  I am not able to discern, from a close reading of the Tribunal’s reasons, that it has made any reviewable error.

11. In these circumstances, I have no alternative but to dismiss the application.  It may well be that this could facilitate Mr Alhaja’s return to Palestine, but that again is not a matter that I can do anything about.  If there is the possibility that he could be assisted to do so it would clearly be a wise and humane course.

12. I would order the applicant to pay the respondent 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:             18 September 2001

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 August 2001
Date of Judgment:	24 August 2001