Khoury v Minister for Immigration and Multicultural Affairs
[2000] FCA 733
•2 JUNE 2000
FEDERAL COURT OF AUSTRALIA
Khoury v Minister for Immigration and Multicultural Affairs [2000] FCA 733
MIGRATION - protection visa - Refugee Review Tribunal ("the Tribunal") refused protection visas to applicants - applicants Palestinians of Lebanese nationality - whether Tribunal failed to adequately address whether Lebanon could provide effective protection to applicants - whether claims were considered "cumulatively".
Migration Act 1958 (Cth), s 430(1), s 476(1)(e)
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 applied
Abebe v Commonwealth of Australia (1999) 162 ALR 1 referred
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 distinguished
Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695 referred
Luu v Renevier (1989) 91 ALR 39 referred
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referredMOUNIR BECHARA KHOURY & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 657 of 1996FINN J
2 JUNE 2000
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 657 OF 1996
BETWEEN:
MOUNIR BECHARA KHOURY
FIRST APPLICANTFAYZA MOUNIR KHOURY
SECOND APPLICANTHANI KHOURY
THIRD APPLICANTAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
FINN J
DATE OF ORDER:
2 JUNE 2000
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. the application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 657 OF 1996
BETWEEN:
MOUNIR BECHARA KHOURY
FIRST APPLICANTFAYZA MOUNIR KHOURY
SECOND APPLICANTHANI KHOURY
THIRD APPLICANTAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
FINN J
DATE:
2 JUNE 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application under Part 8 of the Migration Act 1958 (Cth) ("the Act") for an order of review of the decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision to refuse the three applicants protection visas. Only two of the three applicants Mounir Bechara Khoury ("Mr Khoury") and Fayza Mounir Khoury ("Mrs Khoury") are now prosecuting this proceeding. The third applicant, their son Hani Khoury, has been given leave to discontinue. He has, for independent reasons, been given a visa to remain in Australia.
Background Factual Setting
The circumstances of Mr and Mrs Khoury over time can only be described as hard. And it is difficult not to sympathise with the desire, expressed in their application for refugee status, that they be able "to live in peace in a stable society". Mr Khoury's personal story is itself emblematic of the misfortune of the Middle East over the last half-century.
(1) Mr Khoury was born in Palestine in 1937. He is a Christian. In 1948 his family fled to Gaza. He travelled to Kuwait in 1957 on Egyptian issued travel documents. In 1959 he went briefly to Lebanon where his parents had migrated and where he both acquired Lebanese citizenship and was issued with a Lebanese passport. He then returned to Kuwait where he worked with some success until 1990. He and his wife were in Australia in 1990 on holidays when Kuwait was invaded by Iraq.
(2) Mrs Khoury, also a Palestinian, obtained Lebanese citizenship on marrying her husband. Their children likewise have Lebanese citizenship although they were born in Kuwait.
(3) Mr Khoury travelled regularly in Europe and the Middle East on his Lebanese passport though he has not stayed in Lebanon for any appreciable period since 1959. He has been able to renew his passport without problems, most recently in Sydney.
(4) It is common ground for the purposes of this application that the nationality of Mr and Mrs Khoury is Lebanese even if their actual connection with that country has been fleeting and they do not consider themselves to be Lebanese. Furthermore they do not now know anyone in Lebanon and do not have property there. They did not acquire Kuwaiti citizenship and cannot now return to Kuwait.
The Refugee Claims
The twin circumstances of their having been long term residents of Kuwait (to where they cannot return) but their fortuitously having the nationality of Lebanon (to where they do not want to be sent) have contrived the unusual character of the Khourys' application. Their claim is that they have a well founded fear of being persecuted as Palestinians in Lebanon, notwithstanding that they have never lived in that country and cannot in consequence point to past actions taken against them that could ground their future fear. Rather their fear is founded in apprehensions arising from their being Christian Palestinians in Lebanon - and in Mr Khoury's case in being recognisably Palestinian from his speech - who have supported the Palestinian Liberation Organisation ("the PLO") and who have no personal affiliations in, or assets in, Lebanon. A particular focus of that fear is of persecution by the Syrian forces in Lebanon because of Mr Khoury's known support for the PLO, and because of alleged Syrian threats to, and kidnappings of, Mr Khoury's relatives.
I mention this matter at the outset because the sharp point of divide between the parties relates in substance to how the Tribunal properly ought approach an application having the above character. Put shortly, the respondent's contention is that the Tribunal's task is "largely determined by the case sought to be made out by an applicant": Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 51. As I will indicate it is the respondent's submission that the Khourys have attempted to make out their case for relief in this Court by relying on a claim not made before the Tribunal. This is that if they were to return to Lebanon they would be forced to live in a Palestinian refugee camp where Lebanon could not offer them effective protection.
The applicants' case is that where there are no past events that can be evaluated, the Tribunal must exhibit extra caution in assessing risks. Where, as here, the claim for refugee status is made primarily on the basis of the Khourys being Palestinians, the Tribunal was required to examine and determine whether Lebanon could afford them effective protection in their particular circumstances. The Tribunal's inquisitorial function required it to determine the substantive issues raised by the material and evidence before it whether or not raised in the applicants' case and arguments: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 56. In this case where Mr Khoury had previously claimed in the course of making his application that, if sent to Lebanon, he would be forced to live in a refugee camp, that issue - even if not put directly to the Tribunal - was one it had to determine (but did not) in deciding whether Lebanon could offer effective protection to the applicants.
This "effective protection" issue, which is said to raise an error of law under s 476(1)(e) of the Act, was coupled with a related attack on the Tribunal's statement of reasons. A consequential failure to comply with s 430(1) of the Act is alleged. Distinctly it is alleged that while the Tribunal considered the Khourys' claims separately, it did not consider them cumulatively again resulting in a misapplication of the law under s 476(1)(e).
The Case before the Tribunal and its Decision
Three documents provided to the Department of Immigration, Local Government and Ethnic Affairs in 1992 in support of Mr Khoury's visa application either assert or assume the likelihood of his having to live in a Palestinian refugee camp were he to return to Lebanon. The basis for the assertion/assumption is not revealed other than in the case of Mr Khoury's own lawyers' letter of 13 July 1992 where the assertion is based explicitly on Mr Khoury's "instructions".
When his claim was first heard by the Tribunal in 1995 (this decision, after an appeal to this Court, resulted in a rehearing), his claim as prosecuted was based essentially upon his being a Palestinian Christian. It seems not to have raised positively a claim that he would have been forced to live in a camp were he to return to Lebanon. I should add, though, that the Court Book in the present proceedings does not contain the submissions made then to the Tribunal.
When the Tribunal heard the case the subject of the present application, it indicated the sources of the applicants' case. These were:
"his application for refugee status, information given to the Tribunal when the matter was first heard in February 1995, additional submissions made to the Tribunal and evidence given at the hearing of 4 June 1996."
The Tribunal noted in particular that the submission made by Mr Khoury's legal representatives claimed he had a well founded fear of persecution on the grounds:
"race - he is Palestinian;
political opinion - his long term support for the Palestine Liberation Organisation (PLO), the Fatah faction;
membership of a particular social group - that is the Khoury family, which is known to be associated with the PLO."That submission, after making submissions on the above without reference to Mr Khoury's being compelled effectively to live in a camp, concluded as follows:
"We note also that the likelihood of the applicant enjoying the effective protection of that country must be considered with regard to the fact that he has never resided in that country and has no surviving family in that country."
The transcript of the evidence before the Tribunal again does not reveal any concern being expressed in relation to Palestinian camps. Mr Khoury's focus was on his support for the PLO and his family connection. To the extent that the issue of "effective protection" was independently addressed, it was in the concluding observation of the Khourys' legal adviser. It was in the following terms:
"The only point that I wanted to I suppose reiterate for you in the submission that was made last week was the whole question of effective protection over and above the formal right of return to a country. I mean, I hope obviously - I don't agree that this is the issue that we have to look at here - is whether for a variety of reasons through Mr Khoury's long time political association with the PLO, because of his family difficulties and the complete absence of any family now in Lebanon, but whether the family could return to Lebanon at this time, and live safely and live without a real chance of persecution for any one of those reasons over and above also the question of their Palestinian nationality notwithstanding the Lebanese passports."
Against this background, when the Tribunal gave its reasons for affirming the prior decision to refuse the Khourys' application, it addressed the three claims explicitly made by the Khourys' adviser in his submission and enlarged upon by Mr Khoury in his evidence to the Tribunal.
In relation to the claim based on race, the Tribunal differentiated between Palestinians who were not, and Palestinians who were, Lebanese citizens. In so doing it relied upon what I will call country information. While accepting that Palestinians in the first category did not have political rights, protections and freedoms, it was otherwise for those who were Lebanese citizens. The Tribunal concluded:
"The applicants, as Lebanese citizens, have the same rights to employment and to other civil and political rights as other Lebanese citizens. There is no evidence to suggest that Lebanese citizens of Palestinian origin are treated differently to other Lebanese citizens, by the State. The persecution that foreigners face is their lack of access to services of all sorts."
The Tribunal accepted that about half of the Palestinian refugee population lived in refugee camps and that there is violence practised against them in the camps. But it concluded:
"There is no compulsion on Palestinians to live in the camps. The applicants, as Lebanese citizens, would have no reason to live in them."
In relation to Mr Khoury's two related claims (based on his PLO support and on his family membership) which were alleged to make him a target of the Syrians, the Tribunal reasoned as follows:
"Thus the Tribunal accepts that the human rights and security situation in Lebanon still causes difficulties for those who live there. The Tribunal accepts that there is a pervasive Syrian influence in Lebanon. The Tribunal also accepts that there are widespread human-rights abuses, with those who are anti-Syrian the most likely to suffer such abuses, at least in those parts of Lebanon not controlled by Israel.
However, there is no evidence which is acceptable to indicate that the applicant is perceived as anti-Syrian. There is certainly no evidence to show that he was actively anti-Syrian.
I accept that he supported the PLO, although this support appears to be no more than donating money to the organisation. I also accept that family members have suffered during the civil war. However, I do not accept that the problems the family faced were any different to problems faced by all Lebanese during the civil war. The applicants themselves have not engaged in any activity that would bring them to the attention of the authorities, either Syrian or Lebanese. I do not accept that the family is so well-known, or so directly a target of either the Syrian or Lebanese authorities that the applicants would face a real chance of persecution on the basis of their membership of the family group."
In rejecting the Khourys' claims the Tribunal was not unmindful of the difficulties that would confront them. It observed:
"I accept that it will not be easy for the applicants to make a new life for themselves in Lebanon. I also accept that they do not wish to go to Lebanon. Nonetheless, they are nationals of Lebanon, which country is willing to provide them with protection, and in which country they do not face a real chance of persecution."
The Application
The claim that the Tribunal did not consider the Khourys' contention that they would be forced to live in a camp is said to demonstrate that the Tribunal did not address whether Lebanon was able to afford them effective (as opposed to formal) protection in their particular circumstances. Hence for the purposes of s 476(1)(e) of the Act, the Tribunal committed an error of law.
In submissions the applicants sought to analogise their circumstances (i) to that of a person with dual nationalities, who is a refugee from one such country of nationality but who does not have "effective nationality" in the other: see, for example, Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695 at 705ff; and (ii) to that of a person who has a well-founded fear of persecution in relation to a part of a country but in relation to whom it is not reasonable in the circumstances to expect that he or she relocate to another part of the country of nationality: see, for example, Randhawa, above.
It may be that one or other such analogy may be appropriate in the circumstances of a particular case. But this is not the case. To the extent that the claims positively developed by the applicants were distinctive to Mr Khoury - and I refer to the support of the PLO and to the family "connection" - they were dealt with by the Tribunal in an appropriately personalised way. In the case of the claim based on being a Palestinian Christian, the Tribunal's approach was necessarily different for two reasons: first, because there was no "personal history" on which Mr Khoury could rely to ground his fear of persecution, and secondly because the claim as positively developed contained little by way of personal focus. It was more generic in character. Unsurprisingly, and quite appropriately in my view, the Tribunal dealt with it essentially by reference to country information. In consequence it differentiated between Palestinians who were Lebanese citizens and Palestinians who were not. In building its conclusion around this dichotomy it responded at an appropriate level of generality to that of the particular claim advanced.
It cannot be said, though, that by treating the claim in the way I have described, the Tribunal was insensitive to the issue of whether the applicants would have to live in the refugee camps. Given that, save for the 1992 documentation, no particular issue had been made by the Khourys of this matter and of why because of their particular circumstances they would have to live in the camps, the Tribunal in adverting explicitly to the question treated it in a fashion appropriate to the manner in which Mr Khoury's claims had been presented. It found that there would be no reason for the applicants as Lebanese citizens to live in the camps.
The applicants' real contention is that the Tribunal ought, of its own motion as an inquisitorial body, have investigated whether the applicants could reasonably find accommodation outside of the camps. By not so doing, it is claimed, the Tribunal made no assessment of the applicants' ability to reside in a safe environment. The Tribunal in consequence, it is said, did not address whether Lebanon could offer effective protection to the Khourys.
This contention misconceives what properly could be required of a Tribunal in the circumstances of a case such as this. Having legal representation throughout and having presented evidence and submissions to the Tribunal on two occasions, the Khourys could quite properly expect to have their claims approached by the Tribunal primarily on the basis that what they advanced as their grounds for concern were the particular matters they wished to have addressed. To adapt the words of Black CJ in Randhawa's case (at 443), the extent of the Tribunal's task in dealing with the refugee camp issue was largely determined by the case sought to be made out by the Khourys. The Tribunal did not act unreasonably in its treatment of that issue: cf Luu v Renevier (1989) 91 ALR 39 at 49.
It is not the case that the Tribunal did not consider whether Lebanon could afford the Khourys effective protection. The finding made in relation to the camps indicates, on the contrary, that it was alert to the issue even though not highlighted in the applicants' submissions beyond the three particularised claims.
There is simply no basis for the suggestion here that the Tribunal has not determined the substantive issues raised by the material and evidence before it. Had the evidence before it and the claims made by the applicants been different the Tribunal may well have had to deal with the camps issue differently. But in the circumstances of this case what it did was appropriate for what was before it.
The alleged error of law in failing to consider effective protection has not been made out. I reject that challenge to the Tribunal's decision. I reject in consequence the related attack made on the adequacy of the statement of reasons on the effective protection issue.
The final challenge made to the decision is that while the Tribunal considered each of the applicants' claims separately, it did not consider them cumulatively. It is the case that the claims were separately considered. Given their character it would have been astonishing if they had not been. It equally is the case that the Tribunal did not in express terms state that it had considered the claims "cumulatively". Nonetheless it did state that it reached its ultimate conclusion "on the evidence available to [it] and the findings … made on that evidence".
Particular complaint is made (a) of the failure to take account of the effect of Syrian control over the Lebanese government on the applicants' access to services as Palestinians notwithstanding their Lebanese citizenship; and (b) the equation of the problems faced in Lebanon by members of the Khoury family with the problems faced by all Lebanese during the civil war.
While it is possible to suggest that the Tribunal should have made explicit observations that would have dispelled any possible ground for the suggestion that it had overlooked or not properly considered the above matters, the reasons in fact given must be benevolently construed and evaluated fairly: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. So viewed they do not suggest that the Tribunal failed to consider the significance of the totality of the evidence and issues before it howsoever much the applicants might disagree with the fact findings made. Though the claims may have been treated sequentially, it does not appear to me that they have been so disaggregated as to deflect the Tribunal from a consideration of the ultimate question raised by the evidence and material before it and by the positive claims made by the applicants. The reasons themselves do not betray such an omission on the Tribunal's part.
I would reject the application. I would add, though, that the applicants' circumstances do invite a benevolent attitude being taken by the relevant authorities to their declared wish to remain in Australia. It is fortuitous that their possession of a nationality of a country with which they have no practical connection has had the effect of defeating their claim. It equally is the case that their presence in this country was not contrived for the purpose of making a refugee application. They have suffered cumulative misfortunes.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate:
Dated: 2 June 2000
Counsel for the Applicant:
Mr R M Niall Solicitor for the Applicant: Erskine Rodan & Associates Counsel for the Respondent: Mr P R D Gray Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 May 2000 Date of Judgment: 2 June 2000
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