Ayoub, Joseph v Minister for Immigration & Multicultural Affairs Ayoub, Fady v Minister for Immigration & Multicultural Affairs

[1998] FCA 1015

FEDERAL COURT OF AUSTRALIA

MIGRATION – appeal from Refugee Review Tribunal (“RRT”) – review of RRT decision – whether “well founded fear of persecution” on grounds of political opinion or social group – whether error of law to substitute “real chance” test for Convention term “well founded fear” – Syrian national residing in Lebanon – prolonged absence from Syria – membership of Lebanese Forces – treatment of family on return to Syria – illegal departure from Syria.

The Migration Act 1958 (Cth) ss 36, 420, 475, 476,
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR, followed
Velmurugu v Minister for Immigration and Ethnic Affairs (unreported 5 November 1997), cited
Chen Xin He v Minister for Immigration and Ethnic Affairs, 23 November 1995 (unreported), followed
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR, distinguished
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR, followed
The Minister for Immigration and Ethnic Affairs v A and B (1995), 130 ALR 48, cited

Hathaway, The Law of Refugee Status (1991)

JOSEPH AYOUB - v -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 45 OF 1997
  AND
FADY AYOUB - v -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 46 OF 1997

TAMBERLIN J
SYDNEY
20 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 45 of 1997

BETWEEN:

JOSEPH AYOUB
APPLICANT

AND:

BETWEEN:

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

  NG 46 of 1997

FADY AYOUB
APPLICANT

MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

20 AUGUST 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The applications for review be dismissed.

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	NG 45 of 1997

BETWEEN:	JOSEPH AYOUB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

NG 46 of 1997

BETWEEN:	FADY AYOUB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE:	20 JULY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Before the Court are two applications for review of decisions of the Refugee Review Tribunal (“the RRT”), made on 2 January 1997 and 3 January 1997 respectively.  In those decisions the RRT affirmed the decisions of the Ministerial delegate and held that Messrs Fady and Joseph Ayoub (“the applicants”) were not persons to whom Australia had protection obligations under an international Convention; namely, the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”). The determination was that they were not “refugees” within the meaning set out in the Convention: see s 36(2) of the Migration Act 1958 (Cth) (“the Act”).

“Refugee” is defined in Article 1 of the Convention 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....”

Background

The applicants were born in East Beirut, Lebanon and remained there until leaving for Sweden in 1991. The Applicants’ parents were both Syrian Nationals and it is said that the applicants’ father registered both sons with the Syrian authorities after they were born.  The applicants’ father held identification as a member of the political party, the Al Kataeb, which exercised power in East Beirut at relevant times.

Both applicants attended primary and secondary school in Lebanon and completed their secondary studies.

Joseph Ayoub was involved in compulsory military training in secondary school.  He also joined one of the groups of the Lebanese militia forces because this gave him a form of identification and allowed him free movement in East Beirut where he lived.

In 1983, Joseph Ayoub joined the Kataeb and later the Lebanese Forces.  He said he was able to carry an identification issued by Kataeb at that time. His initial training was in the first aid treatment of wounded soldiers but later he undertook military training. He remained a volunteer in Kataeb until 1988, when the Lebanese Forces assumed power. The first clashes between the Lebanese Forces and the Lebanese Army occurred in 1989. Joseph Ayoub’s involvement in these clashes, on his own evidence, was not significant. However, he was involved in armed combat for a period of time.

Fady Ayoub joined the Lebanese Forces whilst in secondary school, in about 1986. His evidence before the RRT was that his purpose for joining was to gain the protection from that group and therefore avoid victimisation from other groups. In 1987, he registered with the Lebanese Forces and remained a member for three years. He was paid for his services and served about six hours per day as a sentry and non-active member.

In 1991, both applicants left Lebanon through Cyprus.  They flew to Italy and then travelled to Sweden. Joseph Ayoub gave evidence about his departure from Lebanon, which is discussed in detail in the RRT decision. This same evidence was not set out in detail in the reasons for decision of Fady Ayoub, although he also travelled to Sweden.

After refugee status was refused in Sweden, both applicants flew to Australia to seek asylum in Australia.  Joseph Ayoub arrived in Australia from Sweden on 3 November 1993 on a false Swedish passport.  Fady Ayoub did likewise and arrived on 28 November 1993. Both applicants then applied to the Department of Immigration and Ethnic Affairs for grant of refugee status on 24 December 1993.  The claimed reason for persecution in both proceedings is the applicants’ political opinion. The RRT made the decisions not to grant a protection visa to either applicant because it was not satisfied that this ground had been made out.  The Minister’s delegate refused to grant refugee status on 28 July 1994. The applicants were notified of the decisions by letter and subsequently, on 16 August 1994, applied to the RRT for review of the decisions.

Applications for Review

Applications for review of both RRT decisions were filed on 21 January 1997 pursuant to s 475 of the Act.

In Joseph Ayoub’s application the grounds of review are:

“1.The Respondent did not take into proper consideration the evidence and facts presented before it as the decision involved an error of law under section 476(1)(e) and (g) of the Migration Act 1958 because the respondent failed to understand the fact that the applicant is a stateless person and entered Australian with false documents seeking asylum for Convention reasons.

2.The Respondent failed to fully comprehend the actual family and political background of the applicant.

3.The Respondent did not take into proper consideration the merit of the case and did not act according to substantial justice pursuant to s 420(2)b of the Migration Act 1958 as per the applicant’s critical situation who was compelled to leave Lebanon to Sweden, and Sweden to Australia under false passport due to the well founded fear of persecution.”

The grounds of review in Fady Ayoub’s application are:

“1.The Respondent erred in law in incorrectly interpreting the applicable law, or incorrectly applying the law to the facts as found, in that the Respondent failed to give proper, genuine and realistic consideration to the merits of the case pursuant to section 476(1)(e) and (g)

2.Procedures that were required by the Migration Act to be observed in connection with the making of the decision were not observed, in that the Respondent did not act according to substantial justice and the merits of the case as required by Section 420(2)(b) of the Migration Act 1958, in that the Respondent failed to give proper, genuine and realistic consideration to the merits of the case.

3.There was no evidence or other material to justify the making of the decision as it failed to take into proper consideration the facts that the applicant is stateless (sic) person who entered Sweden from Lebanon and Australia from Sweden using false passport seeking asylum for Convention reasons.”

Essentially, the applicants submit that the two decisions contain errors of law under s 420(2)(b) of the Act, breach of which may constitute an error reviewable under s 476(1)(e) or s 476(1)(g) of the Act: see Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 and Velmurugu v Minister for Immigration and Ethnic Affairs (unreported 5 November 1997) at 2-3 per Davies J.

Relevant Provisions

The relevant provisions of the Act are:

“420 (1)The Tribunal, in carrying out its function under this Act, is to pursue the objective of providing a mechanism of review that is just, fair, economical, informal and quick.

(2)       The Tribunal, in reviewing a decision:

(a)is not bound by technicalities, legal forms or rules of evidence;

and

(b)must act according to the substantial justice and merits of the case.

...

476 (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

...

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

(g)that there was no evidence or other material to justify the making of the decision.

…

(4)The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

Credibility

The RRT concluded that Joseph Ayoub’s evidence was not credible. The reasons for this conclusion are set out in detail in the decision.  The RRT decided there was an inconsistency in his description of his escape from custody and independent evidence available at that time. The RRT heard evidence, from the applicant, to the effect that despite the great tension between Syria and Lebanon in 1989 and the stringent Syrian security in the region, he was able to escape imprisonment, travel without documentation and cross at two checkpoints, having been stopped at one. He said that he was then allowed to travel back to Damascus without papers or identification. The RRT did not accept the applicant’s account, in this regard, and found that it was implausible.

It must be kept in mind in this case that it is not the role of this Court to adjudicate on the merits of the factual findings made by the RRT, including findings in respect of an applicant’s credibility unless it can be demonstrated that any finding in question was not open on the evidence to the person or body charged with that task.  There is no onus on the RRT to disprove the Applicant’s account. Nicholson J in Chen Xin He v Minister for Immigration and Ethnic Affairs, 23 November 1995 (unreported) at 11, states that:

“It is not the case ... that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide the facts it found on a consideration of all the evidence, subjective and objective. This requires the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.”

However, the RRT is required to consider “all the evidence” in making its factual determinations. This must include all the circumstances surrounding the application.  In understanding this task, it is necessary to appreciate the practical difficulty faced by an applicant in positively proving his or her circumstances. The task of appraising evidence before the RRT is a difficult one in relation to countries and regions where there is great social and political turmoil.

RRT decision

When considering the expression “well-founded fear of persecution”, the RRT referred to the decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. In relation to this expression the RRT said:

“The term ‘well-founded fear’ was the subject of comment in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 (Chan’s case). It was observed that the term contains both a subjective and an objective requirement. “Fear” concerns the applicant’s state of mind, but this is qualified by the adjectival expression “well-founded” which requires a sufficient foundation for that fear (at 396).

The Court in Chan’s case held that a fear of persecution is well-founded if there “is a real chance that the refugee will be persecuted if he returns to his country of nationality” (at 389 and supported at 398, 407 and 429). It was observed that the expression “‘real chance’...clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring...”(at 389) and though it “does not weigh the prospect of persecution...it discounts what is remote or insubstantial” (at 407). Therefore, a real chance of persecution may exist notwithstanding that there is less than a 50 per cent chance of persecution occurring (at 397-398).”

The applicants submit that the RRT applied the wrong test. They rely on a reference made by Burchett J in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 at 643 to the effect that the use of the “real chance” test as a substitute for the Convention term “well-founded fear” invites error. However, it is not apparent, in the present case, that the RRT did not give full proper consideration to the need to establish a well-founded fear of persecution.

The “real chance” test cited by the RRT, if approached with due caution, is of assistance in deciding whether an applicant’s fear is “well-founded”, as required by the Convention. The RRT, in its approach to the definition referred to the correct approach.  I am not persuaded that it fell into any error of law by reason of its reference to the “real chance” approach when considering whether the applicants had a well-founded fear.

The RRT also examined in detail the content of the expression “persecution”. In so doing it referred to the statements made in Chan (supra) and to the comprehensive treatment of this term by Hathaway in his well-known text The Law of Refugee Status (1991) at 104-5.

In the light of the foregoing considerations, I am not satisfied that any error of law has been made in the interpretation of the definition of “refugee” by the RRT.

The applicants further claim that they are stateless because they do not have Lebanese or Syrian nationality. The RRT concluded that both applicants were, in fact, Syrian nationals and that, therefore, Syria was the country against which risk of persecution for both applicants must be assessed. This conclusion was based on the weight assigned by the RRT to the following evidence:

“*information indicating that, if at least one parent of a child is Syrian, then the child is automatically eligible for Syrian citizenship (IRBDC, Response to Information Request SYR 2401, 31 October 1989);

*information indicating that Syria regarded documented offspring in the male line of their nationals as citizens to indefinite generations after emigration (DFAT Cable DM 42294 dated 14.06.94);

*documentation submitted by the applicant, indicating that his status vis a vis the Lebanese authorities was as a national of Syria …”

In the case of Mr Fady Ayoub, the RRT also gave weight to his assertion during his interview, that he was liable for compulsory military service in Syria. This was said to indicate that he was a Syrian national.

In respect of the applicants’ assertion that they are stateless, I am not persuaded that any reviewable error has been made by the RRT.  There was evidence available to the RRT on which the finding could be made. Accordingly, the country against which risk of persecution must be assessed is Syria.

Absence from Syria

Both applicants, in affidavits sworn on 27 February 1998, submit that they would suffer persecution on return to Syria on the grounds that they do not hold Syrian passports and have no documentation to prove that they are, in fact, Syrian nationals. Further, it is said, that even if the Syrian authorities accepted that they were Syrian nationals they would be guilty of not serving in Syria’s compulsory military service and would be gaoled for this crime. This, the applicants submit, amounts to persecution for a Convention reason.

The RRT decided that, given the formal agreements and the informal practices between Syria and Lebanon, the applicants could move freely between the two countries and that no negative inference should be drawn from their prolonged absence from Syria. The RRT quoted from two cables, obtained through the Department of Foreign Affairs and Trade, to support this conclusion. The first cable, dated 31 October 1994, states:

“In October, Syria and Lebanon reached an accord on the question of Syrian workers in Lebanon. It is designed to guarantee working conditions in both countries. To ensure reciprocity of treatment and, not least, to regulate the flow of Syrians into Lebanon by making it necessary for them to first acquire work permits ... Syrians can certainly enter Lebanon without a visa, which is why there are so many of them there...All long term residents require the authorities’ permission. Citizenship, not country of birth, is the deciding factor....”

The second cable, dated 29 February 1996, states:

“A senior official in the Syrian-Lebanese supreme committee has advised that an unwritten agreement has existed between Syria and Lebanon for many years in regard to movement of individuals between the two countries to the effect that:

A Syrian could travel to Lebanon for three months and subsequently extend for a period of six months...

The official advised us that under Syrian law, a child born of Syrian parents in Lebanon would be considered Syrian, but would have to be registered with the Syrian authorities in order to obtain a Syrian identity card.”

On this aspect and in the light of this evidence the RRT concluded:

“The formal agreements and understandings between the two countries do not set any time limits therefore I am of the opinion that the fact the Applicant chose to remain out of Syria, for the length of time he did does not, of itself, place him at any risk.”

In my view, there is no error of law in the interpretation or application of law in relation to either of the expressions “nationality” or “persecution”.  Clearly there was evidence before the RRT to find, on both the applicants’ evidence and the other material before it, that there was no “real chance” of persecution on the basis of the applicants’ prolonged absence from Syria alone.

Membership of the Lebanese Forces

The applicants also claim that the RRT incorrectly applied the law to the facts in finding that they did not have a “well-founded fear of persecution” in respect of their former involvement with the Lebanese Forces.

The RRT accepted that both applicants were involved in the Lebanese Forces from 1986 to 1989. However, it found that the involvement in both cases was of a limited nature and was mostly confined to non combatant work. It considered that the only time that either applicant was involved in armed combat was at Antilas in 1989 when Joseph Ayoub was involved and, by his own account this involvement was of no particular significance. This finding led the RRT to conclude on the basis of available independent information, that there was no “real chance” of persecution arising from Syrian forces due to the applicants’ minimal involvement with the Lebanese forces.

The “independent” evidence considered included the Taif Agreement of 1989, which ended sixteen years of civil war in Lebanon. This agreement came into effect at approximately the same time that both the applicants left the Lebanese Forces. The RRT also considered information available from Amnesty International and the United States Department Country Report on Human Right Practices for 1987, published in 1988. It considered an article by Mr Jim Muir, “Christian militia under siege in Lebanon as tension rise” from the Christian Science Monitor, April 1994 and Gerald Butt’s article “Rewriting the Rules” from Middle East International.  In addition, the RRT quoted a Cable O.DM 42741 of 21 August 1994 provided by the Department of Foreign Affairs and Trade, which reads:

“The justification for the dissolution of the LF and detention of some members (but only a small minority) was for alleged involvement in various capital crimes. There     has been no obvious detention of persons simply for being members of, or sympathisers with, the LF. While the LF could never have claimed to represent mainstream Maronite opinion, members and sympathisers would run into the thousands (our understanding in May was that about 40 LF members were in detention).”

After considering the above information, the RRT concluded that:

“The Applicant and his brother ended any involvement with the Lebanese Forces as long ago as 1989 at the same time peace accords were being made. Their level of        involvement was significantly lower than any of those people who have been reported as arrested or at risk of harm because of their membership in the LF...I conclude that the Applicant’s minimal profile at the time he was involved in the Lebanese Forces, his disengagement from the force around the time the Taif peace accords and his absence from the country since that time renders any risk of harm on that basis remote and insubstantial.

Based on the independent evidence from a wide range of sources I find that the Applicant faces no “real chance” of any harm as a consequence of his minimal role in the forces. I find that neither the Applicant nor his brother, whose matter is also before me, face a “real chance” of persecution for a Convention reason.”

In my view, there was no error of law within s 476(1)(g). There was clearly material before the RRT to provide support for its conclusions and it did not err in its application of the law to the facts. The reasons show that the RRT considered the involvement of both applicants in the Lebanese Forces and the possible consequences for them if returned to Syria. It looked at both the applicants’ evidence and independent extrinsic evidence as to treatment of people formerly involved in the Lebanese Forces. The decision of the RRT on this point does not come within the ambit of ss 420(2)(b) and 476(1)(e).

The Applicants’ brother

The RRT did not accept the applicants’ claim that their brother, who had been returned to Syria by the Swedish Authorities, had disappeared.  This conclusion was based on information before the RRT that the brother’s wife was seeking a work permit and visa for him in Sweden at a time when the applicants claimed that their brother was missing. The RRT considered that it was implausible that the brothers’ wife, if she really failed to locate him, would then make an application on his behalf for a visa and work permit. No error of law has been shown in respect of the application of law to the facts on this issue.

The applicants’ affidavits, filed on 2 July 1997, discussed their contact with their brother. They refer to the treatment which, it is said, he received on his return to Syria.  This information was not before RRT when it made its decision.  The function of the Court is to review the circumstances of the applicants as at 2 and 3 January 1997, which are the dates of the RRT decisions.  The asserted information about the treatment of the applicants’ brother in Syria was not before the RRT.

Illegal departure

The applicants also claim that their illegal departure from Syria would cause them to suffer persecutory incarceration on their return. The RRT decided that punishment for illegal departure would not amount to “persecution”. In reaching this conclusion the RRT referred to information from the Canadian Information and Research Branch, Immigration and Refugee Board Documentation Centre (“IRBDC”), which states:

“The DIRB (IRBDC) received a letter dated 31 March 1995, sent by the United Nations High Commissioner for Refugees (UNHCR) in Ottowa, which provides the following information. Unsuccessful Syrian asylum seekers who left their country illegally will be in principle sentenced to three months of imprisonment and the payment of a fine ranging from 5000 to 1500 Syrian pounds...”

The RRT found support for this information in the US State Department Country Reports in Human Rights Practices (Syria) 1995, which states:

“The authorities may prosecute any person found attempting to emigrate or travel          abroad without official permission, or suspected of having visited Israel. On the other hand, there is no evidence that the Government persecuted upon their return to Syria those who applied for, but were denied, asylum abroad..”

The RRT also considered the UNHCR Handbook and applied the Full Federal Court decision of The Minister for Immigration and Ethnic Affairs v A and B (1995), 130 ALR 48 in this respect.

Imprisonment as a punishment for disobeying the domestic law of a country, by illegally departing, does not of itself amount to “persecution”.  However, if there is evidence of selective harassment based on a Convention reason, the position may be different.  In the present case the above references do not support such a conclusion.

For the reasons given earlier, I do not consider that any error of law has been shown with respect to the RRT decision in relation to either applicant.

The applications are dismissed.  I do not make any order as to costs.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             20 August 1998

Applicant:	Messrs J & F Ayoub (Litigants in person)
Counsel for the Respondent:	Mr D Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 March 1998
Date of Judgment:	20 August 1998