Awada, Chafie Dib v Minister for Immigration & Ethnic Affairs

[1997] FCA 556

IN THE FEDERAL COURT OF AUSTRALIA                  ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                 )  No NG 183 of 1996
  )    
GENERAL DIVISION  )     

BETWEEN:  CHAFIE DIB AWADA  

Applicant

AND:  MINISTER FOR                   IMMIGRATION & ETHNIC                    AFFAIRS

Respondent

Coram:           Davies J.
Date:              16 June 1997
Place:              Sydney

REASONS FOR JUDGMENT

The applicant, Mr Chafie Dib Awada, is a young Shi'ite Muslim who lived in South Lebanon.

Conditions in Lebanon have been horrifying for many years.  The conditions in South Lebanon are still terrible.  However, the question for determination by the Refugee Review Tribunal ("the Tribunal") was whether Mr Awada satisfied the Refugee Convention as being 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." (emphasis added)

When Mr Awada lodged his application for refugee status and when he gave answers at an interview he emphasised the conditions in South Lebanon without pointing to the particular matters which the Refugee Convention requires to be established.  For example, in the interview when asked about an incident in June 1992 when Mr Awada and his family had to leave their home because it was threatened, Mr Awada said:-

"Syrians, Palestinians, Lebanese, Communists, Amal, Hisbollah, El Moribitam, LF -  they could all have been responsible."

Mr Awada said:-

"We went to Ansar, 1/2 hour's drive away.  Stayed in an unfinished house for 2 days.  Father went back and found our house destroyed.  After Ansar I stayed in different towns.  I separated from my family because my father told me to look after myself.  I was on good terms with him."

And then the question was put:-

"Isn't that a result of war?"

Mr Awada answered:-

"When we were forced to leave our house was exploded.  I said in my application I thought this was because of my religion."

The Tribunal came to the view that Mr Awada's problems were basically those which faced people generally in South Lebanon.

Mr Awada has informed the Court that originally he did not present his case properly to officers of the Department of Immigration & Multicultural Affairs because he was badly advised.  However, the Tribunal necessarily gave weight to the application he lodged and to the answers he gave in his interview.  The Tribunal said that Mr Awada claimed to fear persecution because of his Muslim religion, that Israeli and Palestinian forces were present
in the area where he lived and that there were persistent bombings and sniper fire as a result of ongoing warfare. The Tribunal noted that Mr Awada said that he left Lebanon because he feared for his life and that Mr Awada has said it was not safe to live in South Lebanon.  However, the Tribunal considered that the matters which gave rise to Mr Awada's complaints were not matters which affected him as a particular individual but rather as a young man living in South Lebanon. 

The Tribunal accepted that Mr Awada may have been approached for recruitment into several of the forces operating in the area, and that he may have been threatened by the forces when he refused their approaches.  The Tribunal accepted that Mr Awada was not allied to any political or military group and that he rejected every approach to recruit him.

However, the Tribunal concluded that this was an incident of the civil war conditions which existed and was unrelated to Mr Awada's civil, political or religious status.  The Tribunal did not consider the destruction of the house showed that persecution existed.  This was in part because the Tribunal did not accept that it was known who caused the destruction.  It could have been due to the general war conditions operating at that time.  The Tribunal, moreover, did not accept Mr Awada's claim that he had been detained for a month by the Amal militia.  The Tribunal rejected that claim because Mr Awada had not mentioned that detention either in his written application or in his evidence at the interview.

The Tribunal did not consider that Mr Awada was being persecuted for his religion.  The Muslim religion was officially recognised and the government of Lebanon allowed religious freedom.  The Tribunal went on to say that although Mr Awada was subjected to incidental violence as a result of communal disturbance, he was not at risk of serious harm
in South Lebanon by virtue of his civil or political status.  The Tribunal went on to say that there was no real chance of persecution for a convention reason outside South Lebanon where Mr Awada had lived for some time before his departure from Lebanon. 

I cannot see any error in the Tribunal's approach.  It appears to me that the Tribunal approached the matter with a correct understanding of the law and was unable to identify any real chance of persecution for a convention reason.  The Court's function is limited to determining whether there was an error of law in the decision of the Tribunal.  The Court does not have power to consider the application for itself.  The facts of the case are for the Refugee Review Tribunal.  It is the decision-maker of fact.  The Court has the limited function of examining the material to see whether the Tribunal adopted a wrong approach. 

Accordingly, the application must be dismissed.  I can only express my sympathy to Mr Awada.  I understand how terrible conditions must be in areas such as South Lebanon and I understand the problems that peaceable people encounter when living in the midst of warring factions.  However, what must be proved in a refugee case is not that there are good reasons for wishing to live elsewhere, but that there is a well founded fear of persecution for a convention reason.  The Tribunal was not so satisfied.  Accordingly, the application will be dismissed with costs.

I certify that this and the 3 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:  16 June 1997

The applicant appeared in person.

Counsel for the respondent:  R. Beech-Jones

Solicitor for the respondent:  Australian Government Solicitor       

Date of hearing:  16 June 1997

Date of judgment:  16 June 1997