Hbeiche, Bedweny Chawki v Minister for Immigration and Multicultural Affairs

[1998] FCA 701

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG  82  of  1998

BETWEEN:	BEDWENY CHAWKI HBEICHE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		O'CONNOR J
DATE OF ORDER:		18 JUNE 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

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 82 of 1998

BETWEEN:	BEDWENY CHAWKI HBEICHE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'CONNOR J
DATE:	18 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HER HONOUR: This is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 16 January 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The grounds of the review stated in the application were:

1. that the Tribunal erred in law in that the procedures that required by the Migration Act 1958 (the Migration Act) and Regulations to be observed in connection with the making of the decision were not observed;

1. that the Tribunal erred in law in that the decision was an improper exercise of the power conferred on the Tribunal by the Act;

1. that the Tribunal erred in law, in that the Tribunal incorrectly applied the law to the facts as found by it;

1. that the Tribunal erred in law in that there was no evidence or other material to justify the making of the decision; and

1. that the Tribunal erred in law in that it did not act according to the substantial justice and merits of the case.

The applicant seeks a declaration that he was a person who had a well founded fear of persecution and was entitled to the grant of a protection visa.  Alternatively the applicant seeks an order that the decision under review be set aside and remitted to the Tribunal to be further considered according to law.

Legislative Context
The relevant provisions of the Migration Act in respect of this application are as follows:

“Refugee Review Tribunal’s way of operating

420.  (1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, 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 substantial justice and the merits of the case.

...

Application for review

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:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

(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.

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.

(3)  The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a)an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b)an exercise of a personal discretionary power at the direction or behest of another person; and

(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d)taking an irrelevant consideration into account in the exercise of a power; or

(e)failing to take a relevant consideration into account in the exercise of a power; or

(f)an exercise of a discretionary power in bad faith; or

(g)any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

(4)  The ground specified in paragraph (1)(g) is not to be taken to have 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.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is 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; 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.”

Factual Background

The applicant is a 28 year old Maronite Christian from a town north of Beirut in Lebanon.  He has worked as a motor mechanic from 1986 to 1995.

The applicant claims that in September 1993 a Christian girl from his village was abducted  and raped by Syrian workers.  The Syrian workers suspected of responsibility were accosted, beaten and threatened with death by the applicant.

The applicant claimed his home was thereafter attacked by Syrian armed forces;  his car was blown up, his house was damaged and he was arrested and taken to Tripoli where he was interrogated and beaten for threatening the life of a Syrian civilian, causing civil unrest and conducting anti-Syrian activities in north Lebanon.  The applicant was detained for 45 days before being released.  After his release the applicant claimed he was unable to find employment and his movements were ‘continuously monitored by the Syrians’.  However at the Tribunal hearing the applicant stated that after his arrest and after two months rest, he returned to work and continued to work until late 1995.

In his written application the applicant claimed that had not been involved in any political activities during Lebanon’s civil war (although he claims his brother was a high ranking member of the Christian Lebanese (LF) militia).  However at the Tribunal hearing the applicant stated that he took an interest in the LF after he had been detained by the Syrians and attended meetings and distributed leaflets for the LF.

In January 1996, the applicant claimed that Syrian intelligence officials came to his house accusing him of being in possession of ‘a huge stock of military hardware’.  In his written application the applicant claimed the Syrian workers involved in the 1993 incident had again testified against him.  At the Tribunal hearing the applicant stated that he evaded the Syrians until he left for Australia in April 1996.

Saying he was fearful for his life, the applicant obtained a renewal of his passport on 27 February 1996 without difficulty, and departed Lebanon through Beirut airport with the assistance of a high ranking cousin employed in the Department of State Security, (a fact mentioned for the first time at the hearing before the RRT).

Since his departure the applicant claims that his home had been searched and heavily damaged;  the Syrians continue to monitor the house and his neighbours are questioned as to his whereabouts.  His family now lives in Beirut and his wife has been questioned about as to his whereabouts.  This was supported by the evidence of a witness given on behalf of the applicant at the hearing.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 1 July 1996.  The delegate’s decision refusing the application was made on 10 March 1997.  The applicant applied for a review of that decision by the Tribunal on 2 April 1997.  The application for review was rejected by the Tribunal and his application for protection visa refused on 16 January 1998.

Tribunal’s Decision
The Tribunal in its decision, considered the issues raised in the application, the oral evidence given at the Tribunal hearing and independent country information deemed relevant to this application.

The Tribunal made the following findings:

• In respect of the 1993 incident the Tribunal accepted that the applicant was detained by the Syrians and that he was mistreated in Tripoli.  However the Tribunal found the motive for the Syrians was not for a Convention reason but was retaliation against the applicant because he took “the law into his own hands” by detaining two Syrian youths that he suspected of abducting a female relative.  Contrary to the evidence given by the applicant at the Tribunal hearing that he only smacked or slapped the youths the Tribunal found it more plausible that the applicant treated the Syrians in the manner he described in his written application, that is, he and friend beat them and threatened to kill them.

• In respect of the applicant’s claim that he was ‘continuously monitored by the Syrians’ since his release in 1993 the Tribunal found that there was no credible evidence that he was of any further interest to the authorities.  The Tribunal did not accept the applicant’s evidence, presented for the first time at the Tribunal hearing, that the applicant was involved in LF activities after 1993;  this evidence was not mentioned in his written application and the applicant’s participation in the LF (attending nightly LF meetings twice a month in Beirut) would not have attracted the attention of the Syrians to the extent that they should suddenly devote substantial resources to try to catch him.

• In respect of the 1996 incident the Tribunal found it implausible that two youths beaten in 1993 should come forward and testify against the applicant three years later given the applicant’s claim that he was ‘continuously monitored’.

• The Tribunal did not accept that the applicant was wanted by the authorities.  The Tribunal also found it implausible that authorities in Beirut would spend their time constantly asking neighbours, but not the applicant’s wife, about the applicant’s whereabouts.  The fact that the applicant was able to renew his passport and depart from Beirut airport without difficulty also indicated that the Tribunal’s assessment of the situation.

• The Tribunal did not accept the claim - made for the first time at the Tribunal hearing - that a cousin with a high ranking position with the Department of State Security renewed the applicant’s passport nor the claim that his departure from Beirut airport was facilitated by his high ranking cousin.  The Tribunal relied on independent country information that a claim that, either for a bribe or as a family favour, a person could be escorted by a member of the security forces to the airport and through the airport security checks was highly improbable.

The Tribunal concluded:

“As I find that the applicant was not detained by the Syrians in 1993 for a Convention-related reason, and because I find that he was not on a Syrian or Lebanese wanted list after 1993, I am not satisfied that he faces a real chance of persecution for a Convention reason, nor or in the foreseeable future, if he returns to Lebanon.” (Page 15 of Tribunal Decision).

Submissions of the Parties

At the hearing of this matter, Counsel for the applicant made one submission only, namely that the conclusion that the decision maker makes, (reproduced in the paragraph above), in relation to whether this applicant has a well founded fear that he faces a real chance of persecution for a Convention reason, or will have a real chance of facing such persecution in the foreseeable future, if he returns to Lebanon, amounts to an error of law (s 476(1)(e)).

On behalf of the applicant, Counsel listed four matter which he describes as “findings of fact” made by the decision maker that the applicant was detained by the Syrians in December 1993, and that he was mistreated in Tripoli (page 11), that the applicant was detained as a consequence of his detaining and beating two Syrian youths that he suspected of abducting a female relative, (page 11), that while in detention the applicant was accused of killing Syrians, (page 6) and (page 13), that the brother of the applicant was wanted for being an officer in the Lebanese Forces, (page 13).  The submission of the applicant is that if the above facts were accepted by the Tribunal as true, then the Tribunal was not able, as a matter of law, to come to the view that the applicant’s fear that he would face a real chance of persecution on return to Lebanon was not well founded.

The respondent submits, and in my view correctly, that the last two matters referred to by the applicant, namely, the fact that while in detention the applicant was accused of killing Syrians and that the brother of the applicant was wanted for being an officer of the Lebanese forces, were not made as findings of fact by the Tribunal.  They were stated in the decision as the facts asserted by the applicant to support his case.  It is the obligation of the Refugee Review Tribunal to give proper consideration to the facts presented to it by applicants for protection visas.  One of the matters put before the Tribunal, (and it is clear from a reading of the decision that it was assessed), was that the applicant claimed he was on a Syrian and Lebanese army wanted list.  The conclusion of the Tribunal, after discussing the issue, was that this fact was not accepted.  The Tribunal was, on the evidence before it, able to so conclude.

In a discussion of the evidence the Tribunal analysed the applicant’s claim regarding the Syrian intelligence system and used independent information available to it in order to come to the conclusion that the applicant’s claim about being wanted by the authorities was implausible.  I accept the respondent’s submission that the Tribunal did not equate a well founded fear of persecution only with being on a wanted list, or being wanted by the authorities, but was, in the last paragraph of the reasons merely recording a conclusion that the Tribunal drew about the principal reason that the applicant gave for currently fearing persecution.

The respondent submits that to take a sentence of this kind and construe it narrowly as being the only basis on which the Tribunal came to its conclusion, in relation to the applicant, is to fail to apply the correct approach which is summarised in the Minister for Immigration and Ethnic Affairs -v- Wu Shan Liang (1996) 185 CLR 259 at 291:

“The reasons under challenge must be read as a whole.  They must be considered fairly.  It is erroneous to adopt a narrow approach, combing through the words of the decision maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”

Applying this principle to this decision I consider that no error of law is made out.  On the contrary, there is a detailed examination of the claims of the applicant, a proper assessment of their worth and the findings of the Tribunal and the conclusions it came to, were open to it upon the material before it.

The application is dismissed with costs.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:  18 June 1998

Counsel for the Applicant:	A.J. O’Brien
Solicitor for the Applicant:	Harrisons the Lawyers
Counsel for the Respondent:	R.M. Henderson
Solicitor for the Respondent:	Australian Govenment Solicitor
Date of Hearing:	9 June 1998
Date of Judgment:	18 June 1998