Khoraizat, Mohamad Hassan v Minister for Immigration and Multicultural Affairs

[1998] FCA 593

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - No point of principle.

Migration Act 1958 (Cth) - s 476(1)(e) and s 476(1)(g)

MOHAMAD HASSAN KHORAIZAT v
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 0147 OF 1998

DAVIES J
15 MAY 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 0147  of   1998

BETWEEN:	MOHAMAD HASSAN KHORAIZAT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	DAVIES J
DATE OF ORDER:	15 MAY 1998
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be 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 0147 of 1998

BETWEEN:	MOHAMAD HASSAN KHORAIZAT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DAVIES J
DATE:	15 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This application seeks orders of review with respect to a decision of a Refugee Review Tribunal ("the Tribunal") refusing the applicant's claim for refugee status. The application relies principally on ground (e) of s 476(1) of the Migration Act 1958 (Cth) which provides, inter alia, that the Court may make an order of review if there was an incorrect interpretation of the applicable law. The application also relies upon ground (g), that there was no evidence or other material to justify the making of the decision. This Court has no power to review the whole of the material itself and it has no power to grant or refuse a protection visa. Its function is to see whether there was a reviewable error in the Tribunal's decision.

The applicant informed the Tribunal that he had grown up in South Lebanon and had later moved to Beirut in about 1993.  He said that he had been approached by the organisation Hezbollah, which the Tribunal said was an organisation which had become a serious political player within post civil war Lebanon.  The applicant gave evidence that he was approached in Beirut by a man who asked if he would work for Hezbollah.  Later he received a letter which said "You have to work with us and we will pay you."  The applicant said that this man had come from the village in South Lebanon in which he had lived but was at that time in Beirut working for Hezbollah.

The applicant did not agree to work for Hezbollah.  He gave evidence that, on 5 October 1994, when on his way to work he was waiting on the road for a car, three men in a car approached him, took him to an area near the sea, beat him and left him there.  The applicant gave evidence that he was informed that, on the next occasion, the men would be more violent and that, if he did not co-operate, they would have doubts about him.  The applicant said that he left Lebanon in March 1995 and came to Australia.

The Tribunal did not reject that evidence because of the applicant's demeanour.  It rejected the evidence, however, because the Tribunal considered it to be contrary to the circumstances which were reported to prevail in Lebanon at the time.  The Tribunal cited from a report in Ottawa of 1996 which said inter alia:

"For ordinary citizens, whether Christian, Muslim or Jews there are no problems regarding the Hezbollah.  There have been no instances where the government has had to provide protection to ordinary citizens because they were afraid of Hezbollah. Even regular Hezbollah members who leave the party for whatever reasons would not have problems with the party because ordinary members do not have information that would threaten the organisation."

The Tribunal also cited another report from Ottawa, dated 16 July 1996, which said, inter alia:

"People are often questioned by members of Hezbollah for updated intelligence information about the current positions or movements of SLA or Israeli troops.  There have been no reports of violence or harassment of these people only of questioning."

The Tribunal considered that it was unlikely that the applicant was specifically targeted by the Hezbollah for the role of an informant.  Having regard to the significant period of time that had elapsed since he had left the security zone, the Tribunal rejected the claim that the applicant had been beaten by members of the Hezbollah organisation.  The Tribunal said that it was not satisfied that this incident was carried out by the Hezbollah.  The Tribunal finally said that it was not satisfied on the evidence that the applicant would not be able to avail himself of the protection of the Lebanese authorities if he were in future to encounter threatening conduct from Hezbollah.  The Tribunal said that independent evidence indicated that Hezbollah is concerned to cooperate with the State authorities and did not condone unlawful behaviour by its members. 

I understand the great difficulty which the applicant had in this case, for a single man coming from Lebanon cannot expect to provide proof of the events of which he gives evidence and has to rely upon the evidence which he, himself, can give.  It is therefore good practice for Refugee Review Tribunals when making decisions to take account of the difficulties of proof with which a claimant is presented.  However, it is also the position that the Tribunal must look at the information available in respect of the country.  Tribunals are expected to take into account the conditions as they are generally considered by the authorities in this country and authorities in other countries to exist in the country from which the claimant has fled.

In the present case, the Tribunal relied upon evidence of the conditions existing in Lebanon and considered that the applicant's claims were inconsistent with it.  As I have said, it is not for the Court to make up its own mind about these matters.  The function of the Court is simply to ascertain whether there was some error in approach by the Tribunal. 

I have carefully considered the decision.  I am not satisfied that there was any error of approach by the Tribunal.  I am not satisfied that there was any identifiable error in the manner in which the Tribunal considered the question and I have not identified any error in the Tribunal's statement of the principles to be applied.  In these circumstances, it is necessary that the application be dismissed.

The application will be dismissed with costs. 

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Dated:             15 May 1998

Applicant appeared in person.
Counsel for the Respondent:	Mr Timothy Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 May 1998
Date of Judgment:	15 May 1998