Fadhly, Amin Al v Minister for Immigration and Multicultural Affairs

[1998] FCA 1686

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1263  of   1998 NG 1272  of   1998

BETWEEN:	AMIN AL FADHLY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		MOORE J
DATE OF ORDER:		16 DECEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1263 of 1998 NG 1272 of 1998

BETWEEN:	AMIN AL FADHLY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	16 DECEMBER 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 23 October 1998.  The Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to Mr Amin Al Fadhly (“the applicant”).

In its reasons for decision the Tribunal set out the background against which it was dealing with the application.  The applicant, who was initially described by the Tribunal as a “citizen of Kuwait”, arrived in Australia on 7 May 1998.  He made application for a protection visa on 18 May 1998 and that application was refused on 29 June 1998 by a delegate of the Minister.  On the same day the applicant sought a review of that decision by the Tribunal.

The Tribunal set out at length the evidence of the applicant, the evidence of witnesses called on his behalf and a range of documentary material either provided by the applicant or otherwise relevant to his application.  In its reasons for decision it identified the possible bases upon which the applicant might be a refugee.  They were that he might have a well-founded fear of persecution because of his membership of a particular social group, namely the Bedoons or for reasons of his political opinion.

The Tribunal made a number of findings about the life of the applicant had led in Kuwait.  While the Tribunal accepted that the Bedoons as a social group can suffer disadvantage and discrimination in Kuwait it concluded in relation to the applicant that he had led what the Tribunal described as a “relatively privileged life”.  I have read the Tribunal’s reasons for decision with some care and it is clear to me that the finding was one that was open to the Tribunal to make.

On the question of persecution on the grounds of membership of a particular social group, the Tribunal said, in my view correctly, that whether a person is a refugee by virtue of membership of that group is an issue that raises questions of fact and degree.  The Tribunal concluded that there was not a real chance of persecution by virtue of the applicant’s membership of that social group.  That again in my view, is a finding that was open to the Tribunal.

The applicant is an actor and author and that has a relevance to his claim of having a well founded fear of persecution for reasons of his political opinion as it is through his writing that he says his political opinions are expressed.  To support the claim founded on political opinion, the applicant gave evidence of being detained and tortured in late 1997 and early 1998.  The Tribunal accepted that if this account represented what had happened then real questions would arise about the status of the applicant as a refugee having regard to his political opinion.  However, for reasons that I need not detail, the Tribunal did not accept that, as a matter of fact, he had been imprisoned and maltreated.

It is not my function to determine whether, as a matter of fact, persecution of that type occurred and in the ordinary course this Court is obliged to accept findings of fact of the Tribunal.  The reasons given by the Tribunal for rejecting the evidence of the applicant turned in large measure on the Tribunal’s assessment of his credit.  Its explanation for rejecting the account of the applicant is a coherent and credible one and does not, in my opinion, disclose any reviewable error.

The applicant has filed two applications for review.  One is in a handwritten form and the other in a typewritten form.  The typewritten one, which post dated the handwritten one, identifies various errors that were said to have been made by the Tribunal.  While I have considerable sympathy for the plight the applicant is in, my function is limited to ascertaining whether or not there is reviewable error.  I am not satisfied there is and I therefore dismiss the application with costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated:             16 December 1998

The applicant appeared in person
Counsel for the Respondent:	Tim Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 December 1998
Date of Judgment:	16 December 1998