Ibraheem v Minister for Immigration and Multicultural Affairs

[2001] FCA 1860

FEDERAL COURT OF AUSTRALIA

Ibraheem v Minister for Immigration and Multicultural Affairs
[2001] FCA 1860

KHALED TAWFEEK IBRAHEEM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W414 of 2001

CARR J
19 DECEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W414 OF 2001

BETWEEN:	KHALED TAWFEEK IBRAHEEM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	19 DECEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

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	W414 OF 2001

BETWEEN:	KHALED TAWFEEK IBRAHEEM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	19 DECEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 4 September 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant who claims to be stateless and formerly resident in Syria, arrived in Australia on 24 August 2000.  On 5 February 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”). On 18 June 2001 a delegate of the respondent refused to grant a protection visa and on the same date the applicant applied for review of that decision.

   THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION

2. The applicant’s claims were, in summary, as follows:

   ·     His family was originally from Gaza, but left in 1967 when Israel invaded Gaza.

   ·     His father was a well-known anti-Israeli writer.

   ·     The applicant was born in 1974 in Jerash, Jordan where he lived until 1980 when his father was deported to Syria.

   ·     When the family entered Syria, his father was refused any status by the Syrian Government, they were not granted official temporary residency rights and were very vulnerable to deportation. 

   ·     He was educated at primary intermediate and high school levels in Syria.

   ·     From 1993 until 1996 he studied in Russia where he obtained qualifications as a dental technician.

   ·     Upon return to Syria he did voluntary work to gain experience, then worked in a laboratory owned by a friend before becoming self-employed in 1997.  He was self-employed as a dental technician until 2000.  Until he left Syria he lived with his parents in Alyarmouk camp in Damascus.  His father was a teacher, four of his brothers live in Gaza and one lives in Syria.  One of his sisters lives in Syria and another lives in France (her husband being Palestinian with French citizenship).

   ·     Two years ago he applied at the Australian Embassy in Damascus for a visa to migrate to Australia, but was refused. 

   ·     He was not registered with UNHCR.

   ·     His troubles arose out of his business as a dental technician.  He met a physician named Ameen Alkoud and agreed to do work for him.  At the beginning Ameen Alkoud paid on time, but when he found out that the applicant was originally from Gaza, he stopped paying him. 

   ·     Ameen Alkoud knew, so the applicant claimed, that he had no rights in Syria and wanted to exploit this.  He used to visit Ameen Alkoud’s surgery and ask for payments, but was always refused.  On the last occasion when he approached Ameen Alkoud he insisted on being paid. 

   ·     Ameen Alkoud threatened to have the applicant deported from Syria.  Two days later a policeman knocked on the door and asked for the applicant.  The policeman told the applicant’s parents that the applicant should report to the Intelligence Branch For Foreigners.

   ·     The applicant’s father gave the policeman coffee and paid him 1,000 lira to keep the matter closed as long as possible.  This gave the applicant time to make inquiries about his situation.  He found out that his name was down for questioning.  A friend later told him that his name was on a list of people to be deported. 

   ·     He then decided to make arrangements to leave Syria to avoid the possibility of being arrested and deported. 

   ·     He obtained a genuine passport from the Egyptian Embassy in Damascus which he used to travel to Australia. 

   ·     If he returns to Syria he will be imprisoned until he can be deported to another country.  This might take years because no other country would accept him.  This will happen because he is an illegal Palestinian from Gaza living in Syria.

   ·     His father was a member of the Communist Party and was involved in that party’s activities in Syria, but the party had now ceased, though his father continues to go to meetings with his friends.

   ·     His brother had been detained and sent to Lebanon in a military vehicle.

   ·     The Syrian authorities tried to force his father to go to Lebanon, but due to his age and health he was allowed to stay in Syria.

3. I shall not attempt to summarise the Tribunal’s findings and reasons.  I set them out below in full.  I have added numbers to the paragraphs to facilitate the references which I make later in these reasons.

   “FINDINGS AND REASONS

   1.  The applicant claims that if he returns to Syria he will be persecuted because he is a Palestinian. He claims that he has no rights in Syria and that he will be detained and deported. The applicant also claims that he will be persecuted for reasons of his father's political activities. In assessing the applicant's Convention claims I am required to determine whether he has a well-founded fear and if so whether what he fears amounts to persecution for a Convention reason.

   2.  When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible, but unable to substantiate all of their claims. However, a decision-maker is not required to accept uncritically any and all allegations made by an applicant, nor is it necessary to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, nor to accept claims which are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J. See also Shu Min Pan v MIMA, (unreported, Federal Court 23 January 1997 RD Nicholson J at p 10), Chan per McHugh J at 428 and Kopalapillai v MIMA (1998) 86 FCR 547. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1999) FCR 220).

   3.  In my view, some aspects of the applicant's evidence were implausible, internally inconsistent and inconsistent with the independent evidence. Overall, I do not consider that the applicant' s evidence in relation to his specific claims for refugee status was credible or reliable.

   4.  That said, I accept that the applicant is a Palestinian. I accept that he has no citizenship and is stateless. The applicant lived in Syria for twenty years before coming to Australia (with the exception of a period of temporary residence in Russia for study purposes) and specified Syria as the country from which he seeks protection. I have therefore assessed the applicant's claims against Syria as his country of former habitual residence.

   5.  The applicant claims that he was not registered with the United Nations Relief and Works Agency (UNRWA). Since his family did not leave Gaza until 1967 and then resided in Jordan before going to Syria in 1980 the applicant's family is unlikely to be registered as refugees. Furthermore, according to the country information, which the Tribunal accepts, persons in the circumstances of the applicant's family are not registered as refugees with UNRWA. I therefore find that the applicant is not registered with UNRWA.

   6.  While it is clear from the independent information that Palestinians who are not UNRWA-registered refugees in Syria do not have the same rights in relation to access to services as those who are registered refugees the independent evidence does not suggest that Palestinian not registered with UNRWA face discrimination amounting to persecution in Syria. Indeed, information from DFAT is to the effect that there is no significant discrimination against Palestinians who are not registered with UNRWA. The evidence suggests that the Syrian government accepts the presence in Syria on a long-term basis of non-UNRWA registered Palestinians, just as it accepts the presence of other Arabs. Furthermore, the independent evidence before me does not suggest that Palestinians not registered with UNRWA are deported from Syria.

   7.  I accept that as an Arab resident in Syria who is not a Syrian national, the applicant is not legally entitled to social assistance, to own property or a business, and that he may be denied free access to civil courts. However, I note that the applicant obtained primary and secondary education in Syria. He has always lived in the same accommodation, and his parents still live in that accommodation. In addition, notwithstanding the official ban on Arab residents in Syria working without a work permit, the applicant was able to work in his chosen occupation both as an employee and in his own business.

   8.  The applicant claims that he and his family were in Syria illegally. However, the independent evidence before me indicates that Arabs in Syria are regarded as guests, that they do not require visas to enter Syria and that they may remain in the country permanently without a residence permit. In view of the independent evidence before me I reject the applicant's claim that he and his family were in Syria illegally. In my view, the applicant and his family were residing in Syria legally. In relation to this, I note that UNRWA-registered Palestinians, who are the only officially recognised refugees in Syria, arrived in that country after the events of 1948. There is nothing in the independent evidence which suggests that the applicant and his family would have had any different status than other Palestinians in Syria because of the applicant's father's previous political activities, either in Gaza or in Jordan. Furthermore, there is nothing in the independent evidence which supports the applicant's assertion that he and his family were regarded as illegal residents in Syria because they were originally from Gaza.

   9.  The independent evidence indicates that Arabs resident in Syria are only liable to deportation if they come to the attention of the authorities in relation to a criminal matter. As noted above, the independent evidence does not indicate that non-UNRWA registered Palestinians are liable to deportation. I therefore do not accept that the applicant was liable to deportation from Syria because he is a non-UNRWA registered Palestinian, or that his brother was deported from Syria for this reason.

   10.  Overall, in my view, the discrimination against non-UNRWA registered Palestinians resident in Syria has not in the past caused the applicant such detriment that it could be characterised as persecution for a Convention reason. I am not satisfied that that as a non-UNRWA registered Palestinian resident in Syria the applicant has suffered discrimination in the past which could be characterised as persecution for a Convention reason. Nor am I satisfied that there is a real chance the applicant would suffer persecution because he is a non-UNRWA registered Palestinian resident in Syria in the reasonably foreseeable future.

   11.  I note that the applicant has in the past travelled on an Egyptian travel document. At the hearing the applicant indicated that he has had such a document since 1986 or 1987 on the basis of his family membership and that he obtained his own travel document before going to Russia. At the hearing the applicant claimed that he was only able to use this document to leave Syria because of personal contacts. He claims that he did not use the document to re-enter Syria. I do not accept the applicant's claim in this regard. The independent evidence indicates that the Syrian government recognises the Egyptian travel document. Moreover, as noted above, the Syrian government accepts long-term Palestinian residents in Syria who are not registered with UNRWA. In my view, there would have been no necessity for the applicant to use the subterfuge he describes to either obtain or use his Egyptian travel document. I consider that the applicant openly used his Egyptian travel document to leave Syria to travel to Australia, and that he previously used the document to leave and then re-enter Syria when he went to Russian to study. I am of the view that the applicant's departure from Syria on each occasion was legal. I do not accept that the applicant was only able to leave and re-enter Syria because of high-level personal contacts of his father's.

   12.  I note the applicant's claim in relation to his business dealings with Ameen Alkoud. I accept that the applicant had a customer named Ameen Alkoud who stopped paying him for goods supplied. For present purposes I accept that Ameen Alkoud threatened the applicant in the course of an argument about payment. In my view, any threat that Ameen Alkoud may have made in relation to deportation would have been an empty one. Moreover, as a long-term resident of Syria, I am of the view that the applicant would have known that such a threat could not be carried out. I do not accept that the applicant was at any risk of being imprisoned and deported arising out of this matter, or that the applicant feared that this would happen.

   13.  Firstly, there is nothing in the independent evidence to suggest that the Syrian authorities would have any interest whatsoever in the applicant because of his status in Syria. As noted above, I do not accept that the applicant was living in Syria illegally. Furthermore, there is nothing in the independent evidence before me to suggest that the applicant would have been imprisoned and deported because of his status in Syria or because a Syrian with whom he had a commercial dispute threatened to have him deported.

   14.  Secondly, I consider it significant that the applicant did not claim to fear being detained and deported from Syria when he was interviewed upon arrival in Australia. I accept that for a variety of reasons asylum seekers may be reluctant to disclose full details of their claims on arrival in Australia. This reluctance may arise from asylum seekers' previous experiences with the authorities in their own country, their concern about being sent back to where they came from, or distress and anxiety in relation to the situation they find themselves in. In some cases, they may have been given quite specific instructions about what they should and should not say on arrival in Australia. I accept that reluctance to provide full details of claims is, in many cases, quite understandable. In addition, the record of the interview may be inaccurate for a variety of reasons, including interpreting errors. Accordingly, it may be, at times, inappropriate to place weight on the record of the interview.

   15.  However, in this case, the applicant was advised that the interview was his opportunity to provide reasons why he should not be removed from Australia. He was also told that if he said something different at a later interview, this could give rise to doubts about the reliability of what he had said. During the interview the applicant made general claims about his reasons for leaving Syria, but said nothing at all about having left Syria because he feared being imprisoned and deported. At the hearing the applicant stated that the interpreter at the interview told him to be brief, that he was only asked general questions and that the interview only lasted about an hour. The applicant also stated that he was happy that he had arrived in Australia and had thought that all of his problems were solved. In my view, none the reasons advanced by the applicant satisfactorily explain the applicant's failure to mention what became his main claim to refugee status, however tentatively.

   16.  Thirdly, I consider it highly implausible that the applicant, having only two customers, would continue to supply one of them for some five months without being paid. I do not consider that the applicant's evidence that he did not worry about the money because he loved making dentures adequately explains how he could afford to continue in business if half of his customer base had stopped paying him. Overall, I am of the view that the applicant fabricated his claim that he was at risk of being arrested and deported in an attempt to enhance his claims to refugee status. As I do not accept that the applicant was at risk of being arrested and deported from Syria, I do not accept that the Syrian authorities visited his home, or that he was told he was on a list of people to be deported.

   17.  At the hearing the applicant stated that he is at risk of persecution in Syria because of the political activities of his father. I do not accept the applicant's claims in this regard. In my view, the applicant's evidence concerning his father's political activities was internally inconsistent. When the applicant arrived in Australia he indicated that his father had been a member of the Communist Party, but neither in his arrival interview or in his application for a protection visa or indeed at any stage prior to the hearing did the applicant suggest that his father had remained politically active. I do not find the applicant's explanation for his failure to make this claim persuasive. Furthermore, the applicant has provided no satisfactory explanation for why he would have been unaware that he was at risk because of his father's alleged political activities until after he came to Australia. Overall, I am not satisfied that the applicant's father was politically active in Syria, that the Syrian authorities have any interest in either the applicant's father or the applicant for this reason, or that the applicant's brother has been deported because of his father's political activities or at all. I am further not satisfied that the applicant’s family needed the protection of a Syrian Army officer to be able to live in Syria without difficulty.

   18.  Overall, I don't accept that the applicant was of any interest to the Syrian authorities at the time he left Syria, or that he is of any interest to them currently. I am not satisfied that the applicant has been persecuted in the past because he is non-UNRWA registered Palestinian from Gaza residing in Syria, because of his actual or imputed political opinion, because of his father's political opinion or activities or for any other Convention reason.

   19.  I have considered whether there is a real chance that the applicant will be persecuted for a Convention reason if he returns to Syria in the foreseeable future. As noted above, I have found that the applicant is a non-UNRWA registered Palestinian who was legally residing in Syria. I am not satisfied that the applicant was persecuted in the past because of his status in Syria. I am of the view that the applicant left Syria legally using an Egyptian travel document. I have found that he has used such a document to leave and re-enter Syria in the past. The independent evidence before me indicates that the applicant would have needed to obtain a visa in order to do so. As the applicant has been granted a visa in the past to re-enter Syria, there is nothing before me to suggest that the applicant would not be granted a visa to re-enter Syria in the future.

   20.  I am of the view that the applicant was of no interest to the Syrian authorities at the time of his departure from Syria. I consider that he was not at risk of being detained or being deported from Syria. There is nothing in the independent evidence to suggest that the applicant would face serious harm if he returned to Syria, or that the Syrian authorities would arrest him or attempt to deport him, either because of his status in Syria, because of his father's political views or activities or because of political views imputed to him. I am therefore not satisfied that there is a real chance that the applicant will be persecuted for a Convention reason in the reasonably foreseeable future if he returns to Syria. In the circumstances, I cannot be satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

   CONCLUSION

   21. Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”

   GROUNDS OF THE APPLICATION

1. The applicant does not appear to have had legal assistance in drafting his application.  The relevant parts of that document read as follows:

   “I can’t returend to Syria”.

   “The submisson well fellow.”

   MY REASONING

2. The applicant was not legally represented at the hearing before me today.  He made oral submissions which were either of a factual nature or went to the merits of the Tribunal’s decision, or both.  The applicant raised two main points.  The first was that the Tribunal had mistakenly held that he could return to Syria on his Egyptian travel document.  He said that he would not be allowed into Syria.  In my opinion, there was evidence in the form of independent country information before the Tribunal which it was entitled to accept (and which it did accept) to the effect that the applicant will be able to re-enter Syria on his Egyptian travel document.  The applicant’s second point was that he was unlike other Arab foreigners in Syria.  He was stateless and had no authorities who could protect him.  In my view, there was evidence before the Tribunal – again in the form of independent country information, but also in the form of the evidence of the applicant’s own history in Syria, upon which it was entitled to find that there was not a real chance of the applicant being persecuted for a Convention reason. 

3. The points raised by the applicant this afternoon did not, in my opinion, raise any question of law or jurisdictional error on the Tribunal’s part.  I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error.

4. In the first part of its reasons the Tribunal set out the relevant law correctly and, in my view, there is nothing later in its reasons to suggest that it did not apply the law as earlier recited. 

5. The essential basis for the Tribunal’s decision was simply that it did not believe the applicant.  This can be seen in paragraphs numbered 3, 8, 9, 10, 11, 12, 16 and 17 of its reasons.

6. To a substantial extent the Tribunal can be seen to have relied upon independent country information to the effect that stateless Palestinians not registered with UNRWA do not face discrimination in Syria which amounts to persecution. 

7. But it also relied upon the fact that the applicant had obtained primary and secondary education in Syria, had always lived at the same accommodation and was able to work in his chosen occupation.

8. It rejected those of the applicant’s claims which were based upon his father’s alleged political reputation.   

9. In my opinion, the Tribunal’s conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees’ Convention was open to it on the material before it. 

10. In my view, the Tribunal made no reviewable error whether error of law or jurisdictional error.  

    CONCLUSION

11. For the above reasons the application will be dismissed with costs.

I certify that the preceding fourteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

A/g Associate:

Dated:             19 December 2001

The Applicant appeared in person:
Counsel for the Respondent:	Mr M T Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 December 2001
Date of Judgment:	19 December 2001