Karakalbakian, Hagop Tanios v Minister for Immigration and Multicultural Affairs

[1998] FCA 1631

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 646  of   1998

BETWEEN:	HAGOP TANIOS KARAKALBAKIAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		LINDGREN J
DATE OF ORDER:		8 DECEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

1. 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
NEW SOUTH WALES DISTRICT REGISTRY	NG 646 of 1998

BETWEEN:	HAGOP TANIOS KARAKALBAKIAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	8 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

INTRODUCTION

The applicant applies under s 476 (1) of the Migration Act (1958) (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the RRT”) dated 3 June 1998 affirming a decision of a delegate of the respondent (“the Minister”) not to grant him a protection visa. 

Section 30 (6) of the Act provides that a criterion for the grant of a protection visa is that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  Article 1A (2) of the Convention provides that a refugee is any 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.”

The applicant’s case is that he is outside the country of his nationality, Lebanon, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of actual or imputed political opinion. 

PROCEDURAL BACKGROUND

The applicant arrived in Australia on 30 September 1996.  On 1 May 1997, he applied for a protection visa (visa sub-class 866).  A delegate of the Minister refused the application on 4 July 1997.  On 30 July 1997, the applicant applied to the RRT for a review of that decision.  The RRT conducted a hearing on 28 May 1998.  As noted above, on 3 June 1998, the RRT affirmed the delegate’s decision.  The applicant filed his present application in this Court on 30 June 1998. 

THE DECISION OF THE RRT AND ITS REASONS

The RRT commenced its Reasons for Decision by referring to the procedural background, the applicable legislation and the law relating to the Convention definition of a “refugee”.  It then considered the applicant’s “Claims and Evidence” which were set out in written submissions to the Department, written submissions to the RRT and oral evidence given at the RRT hearing on 28 May 1998. 

According to the applicant’s Application for a Protection Visa he had lived at the one address in Beirut, Lebanon, since 1943.  He gave his occupation as sports journalist.  He claimed that he left Lebanon in 1996 to come to Australia to visit his daughter and her family, but that on 14 March 1997, his other daughter who was still in Lebanon, telephoned and told him that the civilian police had come to the family home looking for him.  He said that his daughter discovered that the police were looking for him because of something he had written in a newspaper about Syria.  (The article was not reproduced in the RRT’s reasons for decision in order to prevent identification of the applicant:  cf s 431 (1) of the Act).  He also claimed that his daughter told him that the Syrian Secret Service had invaded his office, looked at his files, and broken and confiscated some of his equipment, including computers, cameras and a satellite dish.  He said the Lebanese authorities could not protect him because Lebanon was under Syrian control.

Before the RRT, the applicant said that he had not been aware, when he left Lebanon, that he was wanted by the authorities.  He said that the reason he had not been detained at the airport was that the name noted on his passport was different from the name by which he was commonly known.  The delegate also noted that it would have been an easy matter for the authorities to find him in Lebanon as he had lived at the same address for most of his life.  In response, the applicant said that he had not lived at the family home for some twenty years.  When asked why he had nominated that address as his residence on his Application for a Protection Visa, the applicant said that it was his family home and that he had been living in an establishment which he “could not” name as his official residence.

The applicant claimed that he disliked and distrusted the Syrians, but that he had never had any trouble with them or with the Lebanese authorities while he was in Lebanon.  He said that he had been to Syria for business reasons and had encountered no problems.  He said that he had been friendly with a son of a prominent Syrian political figure. 

Also at the RRT hearing, the applicant claimed that a person referred to in the newspaper article which had brought him to the attention of the authorities, was a member of the Syrian Secret Service, although the applicant had not known this at the time of writing the story.  The applicant could not explain why it was that the Syrians had waited so long after the story was published before making inquiries about him.  (The date of publication of the article in question is not disclosed by the RRT’s reasons for decision.)  The only explanation proffered by the applicant was that the delay may have been caused by the fact that he had used a pseudonym.  The RRT suggested to the applicant that since he had, according to his account, used the same pseudonym for many years, his identity would have been well known despite the cosmetic change to his name.  It was suggested that if he had been of interest to the Lebanese or Syrian Secret Services, they would have had no difficulty in finding him.  The RRT notes in its Reasons for Decision that “[t]he applicant had no answer to this”.  Instead, the applicant claimed that Syrian Intelligence might not have been able to find him because he had lived away from his family home for a number of years.

The RRT recorded that it considered that the applicant’s evidence lacked credibility.  The RRT accepted that those who criticised the Syrian armed presence in Lebanon may come to the attention of the Syrian or Lebanese authorities, and that Lebanese journalists regularly censor themselves on matters relating to Syria.  The RRT noted that the incident about which the applicant had written was, according to his evidence, well known.  As such, the RRT considered that media coverage of the incident would have commanded keen attention and that the applicant’s story would have been noted by those interested, including the Syrian and Lebanese authorities.  The RRT considered that if it accepted the applicant’s evidence that a person mentioned in the article was a member of the Syrian Intelligence, that person would have noted the story immediately and alerted his colleagues to it.  The RRT said that “the fact that the applicant, according to his evidence, had never been approached by the authorities, [led the RRT] to conclude that the authorities were not interested in him or his stories.”

The RRT did not accept the applicant’s claim that the authorities may have had difficulty in locating him because he did not live at the family residence.  It could see no reason, if the applicant was living at the family residence, why he would not have noted the residence at which he was in fact living on his application for a protection visa.  The RRT also considered that for the following reasons it was implausible that the authorities would not have been able to find him for a significant period of time after the article was published: the applicant wrote for newspapers regularly, his family’s address was of long standing and his office addresses would have been plainly available to the authorities, and his family visited him regularly. 

The RRT also did not accept the applicant’s other explanation for not having been arrested before leaving the country, that is, that he wrote under a by-line which was different from his real name.  The RRT considered that the community and the applicant’s circle of acquaintances would all have known his real identity.  Given that fact and the fact that the applicant was known to the son of a prominent Syrian political figure, the RRT considered that the authorities, including the Syrian Secret Service, would have been well aware of the applicant’s identity.  The RRT also did not find it credible that the applicant would have been able to leave Lebanon if he had been wanted by the Syrians.  It referred to independent information about airport security checks in Beirut.  That evidence was to the effect that it was almost certain that anyone wanted by the authorities would be detained at the airport. 

The RRT concluded that the applicant’s evidence generally lacked credibility and it considered that the applicant had fabricated a set of claims in order to gain a protection visa and stay in Australia.  It was not satisfied that he had a well founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future.  As noted earlier, the RRT therefore confirmed the decision not to grant the applicant a protection visa. 

REASONING ON THE PRESENT APPLICATION

In his Application for an Order of Review filed on 30 June 1998, which has signs of having been prepared without professional assistance, the applicant does not specify any grounds.  Where the form of the application provides for a statement of the relief sought, the applicant states that he does not agree with the RRT decision and asks this Court, in effect, to re-hear his case and to order that he be granted a protection visa.  On the hearing today, the applicant has appeared in person assisted by an interpreter.  I have explained to him that the grounds of review on which the Court can interfere are limited by the Parliament and are those identified in s 476 of the Act.  Understandably, the applicant has not been able to suggest any of the permissible grounds of review as applicable to his case. 

I have read the RRT’s reasons for decision and it is plain that the RRT simply did not believe the applicant.  The RRT gave reasons over the space of some two pages for its conclusion that his evidence “lacked credibility”.   As noted above, the RRT concluded that the applicant had “fabricated a set of claims in order to gain a protection visa and stay on in Australia following the expiration of his tourist visa”. 

The applicant no doubt would wish me to review all the evidence and form my own view as to the credibility of his account but this is not the role of the Court.  No ground identified in s 476 of the Act suggests itself from my reading of the RRT’s Reasons for Decision as being available to the applicant.  In these circumstances, there is no basis on which the Court can interfere with the decision of the RRT.

CONCLUSION

For the above reasons the orders of the Court are that:

1. The application be dismissed.

1. The applicant pay the respondent’s costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:            8 December 1998

The applicant appeared in person
Counsel for the Respondent:	Ms V Hartstein
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 December 1998
Date of Judgment:	8 December 1998