Koubah v Minister for Immigration and Multicultural Affairs

[2001] FCA 1093

FEDERAL COURT OF AUSTRALIA

Koubah v Minister for Immigration & Multicultural Affairs [2001] FCA 1093

No question of principle

MOHAMMED ALI MAHMOUD KOUBAH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 131 OF 2001

HELY J
10 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 131 OF 2001

BETWEEN:	MOHAMMED ALI MAHMOUD KOUBAH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	10 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        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
WESTERN AUSTRALIA DISTRICT REGISTRY	W 131 OF 2001

BETWEEN:	MOHAMMED ALI MAHMOUD KOUBAH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	10 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application under Part 8 of the Migration Act 1958 (Cth) (“the Act”) seeking to review the decision of the Refugee Review Tribunal (“RRT”) given on 27 March 2001. By that decision RRT affirmed the decision of the Minister’s delegate to refuse to grant the applicant a protection visa.

2. The applicant was born in Libya of Palestinian parents, who fled to Syria when the State of Israel was created in 1948.  He is a stateless person.

3. The applicant left Syria on 20 October 2000 and arrived in Australia as an unauthorised boat arrival on 22 December 2000.  He was taken into immigration detention, where he remains.

4. The applicant applied for a protection visa on the ground that he has a well-founded fear of persecution by reason of a religious and/or political opinion imputed to him by the Syrian government if he returns to his country of habitual residence, Syria.

5. The applicant went to Syria in 1982 with his family.  He lived in Syria happily without any problems until August 2000.  He claimed that on 25 August 2000 he was arrested, beaten and tortured by the intelligence service because he was suspected of being a member of the Al-Tahrir Party.  He managed to escape from the authorities, and left Syria illegally.

6. RRT did not believe the applicant.  It was not satisfied that he was ever detained in the manner he claimed and for the reason he claimed.  RRT found that the applicant was not, and would not be, a person of interest to the Syrian authorities for the reasons he claimed.  In RRT’s view he is not a refugee from Syria.

7. RRT did not accept that the applicant left Syria illegally.  He had a Palestinian travel document when he left Syria with a visa to enter Indonesia.  The applicant has sufficient links with Syria (at CB 141 RRT says: “Libya”, but this is an obvious error) for him to be able to return to Syria and to live his daily life there in the same manner as Syrian citizens.

8. RRT found that the mere fact of being a Palestinian in Syria is not a source of persecution.  It also rejected the applicant’s claim that the fact of his birth in Libya meant that he was not afforded the same assistance as other Palestinians in Syria.

   Return to Syria

9. Mr Barker QC did not challenge the Tribunal’s finding rejecting the applicant’s claims.  There is no basis on which he could have successfully done so.  Mr Barker frankly acknowledged that RRT’s non-acceptance of the applicant’s claims created problems for the applicant in the prosecution of the present proceedings.  Nonetheless he submitted that RRT committed an error of law, or a jurisdictional error, in failing to address the question of what might happen to a person who is an unregistered Palestinian returning to Syria.

   UNWRA registration

10. A written submission put to RRT on behalf of the applicant included the following:

    “11.     The question now to consider is whether the applicant is able to return to Syria safely.  DFAT Country Information Report 453/00 of August 13, 2000 and CISNET document CX43812 in relation to Palestinian return to Syria, having left Syria illegally states:

    ‘It is unlikely that Syria would admit an undocumented Palestinian refugee.  If his UNWRA registration could be confirmed readmittance might be possible.  However, given a possible illegal departure from Syria and if the circumstances or previous arrests were described he would most likely face some form of mistreatment or detention on return to Syria.’”

    It will be recalled that RRT rejected the claims of illegal departure and was not satisfied that the applicant had been arrested.  It also found that the applicant had achieved UNWRA registration.

11. RRT noted this submission in its reasons for decision (CB 132).  At CB 136 RRT quoted the following country information:

    “Palestinians registered with UNWRA have residence (including permits) and may leave and enter Syria as they wish.  They are issued with a laisezz passer for travel but often have difficulty obtaining visas for other countries.  Palestinians have no rights to citizenship in Syria because of the rights of return embodied in the UN resolution.

    Palestinians registered with UNWRA have access to employment, education and health services equal to those available to Syrian citizens.  They may purchase property but not agricultural land.  They may not vote in national elections but may hold membership of the Ba’ath Party and participate in party elections.”

12. RRT found that the applicant was “at least registered with UNWRA in Libya”.  Again the reference the reference to “Libya” is an error.  Counsel accepted that a reference to “Syria” was intended.  RRT was satisfied that the applicant does not face a real chance of persecution for reason of his Palestinian origin or his Syrian residency in the future, and that the applicant does not face a real chance of persecution if he returns to the country of his habitual residence, Syria.

13. Whether the applicant is or is not registered with UNWRA is a question of fact.  The applicant claimed that he was not registered.  RRT found that he was, at least for the purpose of obtaining travel documents.  When he left Syria he had a Palestinian travel document, and in the previous year he contemplated going to Germany in pursuit of his girlfriend, or to Canada in pursuit of a job. 

14. RRT’s decision proceeds upon the basis that Syria will re-admit the applicant.  RRT did not address and was not required to address, what might happen to a person who was an unregistered Palestinian returning to Syria if only because the Tribunal found that he was registered. The issue of whether the applicant would be permitted to return to Syria safely arose originally in association with his claim that he had been arrested for political reasons and that he left Syria illegally.  As already indicated, those claims failed.  If RRT is wrong in its assessment that the applicant will be permitted to return to Syria, then it may be that the applicant’s future will be uncertain.  If he is not permitted to enter Syria, he might be returned to Australia until Australia is able to find some other country prepared to take him.  But Mr Barker QC frankly accepted that he could not establish that any difficulties which the future might hold for the applicant in that respect are within the terms of the Convention.  That being so, the fact (if it is a fact) that the applicant faces an uncertain future in terms of his re-admission to Syria does not give rise to a well-founded fear of persecution for a Convention reason, given RRT’s rejection of the applicant’s claims.

15. The application for review should be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             10 August 2001

Counsel for the Applicant:	Mr M L Barker QC
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 August 2001
Date of Judgment:	10 August 2001