Loubany v Minister for Immigration and Multicultural Affairs

[2001] FCA 1205

FEDERAL COURT OF AUSTRALIA

Loubany v Minister for Immigration & Multicultural Affairs [2001] FCA 1205

MOHAMMAD ALI LOUBANY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 215 of 2001

MOORE J
29 AUGUST 2001
SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	W 215 of 2001

BETWEEN:	MOHAMMAD ALI LOUBANY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE OF ORDER:	29 AUGUST 2001
WHERE MADE:	SYDNEY (HEARD IN 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 AUSTRALIAN DISTRICT REGISTRY	W 215 of 2001

BETWEEN:	MOHAMMAD ALI LOUBANY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	29 AUGUST 2001
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

Introduction

1. This is an application by Mohammad Ali Loubany (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 29 May 2001. The Tribunal decision affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant the applicant a protection visa.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

   Background

2. The applicant is a Palestinian male who was born in Syria where he has resided since birth at the Al-Yarmouk Palestinian refugee camp.  He arrived in Australia on 23 August 2000 and on 8 March 2001 lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”). On 23 April 2001 a delegate of the Minister refused the grant of a protection visa and the applicant subsequently applied to the Tribunal for review of that decision.

   The Tribunal’s reasons

3. The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of “refugee” and by the notion of “persecution”. In a section in the decision headed “Background and Claims”, the Tribunal summarised the claims made by the applicant in his application for a protection visa and in written submissions provided in support of his application for review.  The Tribunal then set out what emerged from that material which is briefly summarised below.

4. The applicant is twenty-six years old. After completing his schooling in 1993, the applicant was employed in a retail clothing business as a salesman.  In 1994 or 1995 a rally took place at the Al-Yarmouk camp in protest against an Israeli-led massacre in Palestine.  The following day Syrian security forces assembled many of the young people resident at the camp and took them in for questioning.  The applicant was amongst those taken in and was accused of taking part in the rally.  He denied any involvement and stated that he had witnesses who could confirm that he was at work at the time.  Despite claiming to be innocent of any wrongdoing the applicant was detained for a period of three months, during which he was severely beaten.  As a result of the beatings one of his fingers was partly severed and he has scarring over parts of his body.  The applicant was released from detention after three months, with no charges being laid.  Some time later he received an apology from the authorities for his wrongful detention.

5. In 1996 he commenced a period of military service, which he completed in 1998.  In 1999 an incident occurred as he was walking his dog in which a car driven by a person who was inebriated drove over the dog.  When the applicant protested at the harm inflicted on his dog the occupants of the car assaulted him and drove over the dog again, resulting in its death.  The applicant recorded the number plate of the car responsible and, after taking down names and addresses of people who witnessed the incident, reported it to a police station.  After lodging his complaint at the police station, however, he was informed that the inhabitants of the car were government officials and that he was himself to blame for what had happened.  He was then assaulted by the police and had his head shaved as a lesson for being “critical of [his] masters”.

6. In early 2000 the applicant experienced further problems with the security forces, who accused him of belonging to a number of political parties, namely the Moslem Brotherhood, the Al Thawra Party and the National Front.  As a result of these allegations he was taken into custody and questioned, but ultimately not charged with committing an offence.  After being detained for approximately two months, he was released on the payment by his father of a “substantial bribe”.  The applicant then spent time at home recovering from injuries he sustained while in custody.  On one occasion when he did leave home, however, police officers came to his home to check on his whereabouts and, in his absence, assaulted his parents.  Fearing further reprisals, and on his father’s urging, he sought refuge with an aunt who lived in Draa, an area located about 100 kilometres away from Damascus. 

7. When his own home continued to be kept under surveillance by the authorities the applicant decided to flee Syria.  He did so with valid travel documentation that had been issued prior to the allegations of association with the Moslem Brotherhood, and with the assistance of a “people smuggler” whose services had been engaged by his father.  The applicant stated that the smuggler arranged for an exit visa “to be stamped on his travel documentation and paid a bribe to officials at the airport to facilitate his departure.”  He left Syria on 13 July 2000 and at some point on the journey to Australia discarded his travel documentation, which he claimed had expired.

   The Tribunal’s Findings

8. The Tribunal, in a section in its decision titled “Discussion of Evidence and Findings”, commenced by referring to independent country information relating to the position of Palestinian refugees in Syria who are outside the country of their birth with expired travel documentation.  In response to a submission by the applicant’s adviser in relation to this, the Tribunal said:

   “(T)here is no indication that such a problem arises for persons such as the applicant.  Aforementioned information makes clear that in regard to Palestinian refugees in Syria there exists a right of renewal of travel documentation for them just as there is for Syrian nationals.”

9. The Tribunal then addressed the first claim made by the applicant, relating to the 1994 or 1995 rally.  While recording that it had some reservations about minor discrepancies in the applicant’s account, the Tribunal indicated that it accepted the applicant’s account of the incident and the extent of the injuries sustained by him.  It said, however:

   “The applicant had no difficulties with the authorities in the next five years or so, thus indicating he was not imputed with an adverse political opinion.  The Tribunal concludes that the incident in 1994 had no lasting impact and does not indicate a real chance of persecution in the future by reason of the applicant’s political opinion or for any other Convention reason.”

10. The next incident related by the applicant, in which his dog was run over in 1999, was seen by the Tribunal to be “an isolated event that does not hold a real chance of persecution in the future.”  It said:

    “(T)he applicant’s evidence does not satisfy the Tribunal that the response by the authorities was motivated by any Convention reason.  The applicant’s evidence indicates that the culprits were aligned with, or known to, the authorities who acted to protect the interests of those in their ranks.  In weighing the evidence the Tribunal is unable to conclude that either the incident in which the applicant’s dog was killed or the reaction of the authorities discloses any element of motivation to harm the applicant for any Convention ground.  In view of the applicant’s absence of an actual political profile and the nature of the claimed incident the Tribunal is unable to conclude that he was imputed with a political opinion or that the circumstances described by him posed any real threat to the State.  Put at its highest some agents might have acted to protect one or more colleagues who were allegedly to blame with regard to an isolated incident that had no enduring features.”

11. Next, the Tribunal considered the applicant’s claim of harassment in early 2000 based on an imputed political involvement with organisations such as the Moslem Brotherhood.  The Tribunal was not satisfied that the applicant had suffered persecution from the authorities or that he had been detained or placed under surveillance on suspicion of association with anti-State groups.  It stated:

    “Country information cited below indicates the serious consequences of being thought to be allied with groups such as the Moslem Brotherhood.  The Tribunal does not accept that the applicant would be released from custody by the payment of a bribe if he were really believed to have an association with the Moslem Brotherhood or any other anti-State group.”

12. In relation to the applicant’s departure from Syria, the Tribunal outlined the procedure required to be followed in order to obtain an exit permit and travel documentation.  In concluding that the applicant was not sought by the authorities for any Convention reason, it said:

    “[The Tribunal] does not accept that if he were sought due to an actual or perceived association with any political group involved in efforts to overthrow the ruling regime or other anti-State activity he would be able to leave the country using his own documentation merely by the payment of a bribe.

    (D)espite his alleged difficulties with the authorities, the applicant retained his travel documentation and was able to have an exit visa placed on it.  He was then able to pass checks at the airport.  The Tribunal concludes that the applicant was able to depart Syria on official documentation issued to him by the government of that country because he was not wanted by the authorities in relation to any Convention ground.”

13. The Tribunal then set out country information which provided details of the living conditions of Palestinian refugees in Syria and the attitude of the government toward them.  The information provided was summarized by the Tribunal in the following way:

    “Relations between the Syrian authorities and Palestinian refugees are generally positive.  There is no available information to indicate that Palestinians generally face a real chance of persecution at the hands of the Syrian authorities.  All of the available information indicates that Palestinians enjoy substantially the same rights as Syrian nationals and do not face serious discrimination … .

14. In considering the claim that the applicant could face persecution because of his application for asylum in Australia, the Tribunal accepted recent country information which indicated that “all Syrian nationals who are currently unlawfully in Australia will be allowed to return to Syria without question”.  It continued:

    “The Tribunal gives weight to the fact that an application for a protection visa is made in confidence.  Aforementioned information indicates that even if such an application were to become known to the Syrian authorities, the applicant would not face a real chance of persecution by reason of his political opinion or for any other Convention reason.  In view of the applicant’s profile, and bearing in mind his legal departure and aforementioned country information, the Tribunal concludes that he would not attract harm even if his application for asylum were to become known to the Syrian authorities.”

15. The Tribunal concluded by finding, on all the evidence, that the applicant would not be unable to obtain travel documentation from the Syrian authorities and that he did not “face a real chance of persecution for any reason in Syria”.  It affirmed the decision not to grant a protection visa.

    The application for judicial review

16. The applicant appeared in person and addressed the Court through an interpreter.  His application for judicial review contains no specific allegations of error on the part of the Tribunal.  When asked to identify the legal errors of the Tribunal, the applicant spoke of several mistakes the Tribunal had made.  They concerned the capacity of UNRWA to provide protection to Palestinians in Syria, the manner in which he left Syria including the fact that he obtained his travel documentation by bribing officials, an arrangement or agreement between Australia and Syria concerning the fate of illegal immigrants deported from Australia to Syria and the fate that would befall him were he to be returned to Syria.  As to that last matter, the applicant drew my attention to a letter he and other detainees had written to the Minister requesting that they be returned to Palestine rather than Syria if they were deported.

17. I have read the Tribunal's reasons for decision bearing in mind the matters raised by the applicant. For obvious reasons, the matters raised by him are not advanced or articulated in a way that conforms with any of the grounds of review in the Act. However, in reading the Tribunal's reasons, it is not evident that the Tribunal fell into reviewable legal error in considering the applicant's application. The matters raised by him are either irrelevant (because they involve a misapprehension of what the Tribunal decided) or involve factual issues that are the province of the Tribunal. In a sense, what the applicant was inviting me to do was engage in impermissible merits review. Moreover, the principal difficulty for the applicant is that the Tribunal did not accept that he was of interest to the authorities in Syria. It accepted that the applicant paid a bribe to leave Syria but noted that he nonetheless left on his own travel documentation. This, the Tribunal concluded, was not consistent with his account of his status in Syria. Indeed the Tribunal rejected, in substance, the applicant's account of recent events in 2000 that were said by the applicant to stigmatise him as a person of interest.

18. In my opinion, the Tribunal's reasons do not manifest reviewable legal error.  Accordingly the application should be dismissed and the applicant ordered to pay the respondent's costs.  I so order.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             29 August 2001

The applicant appeared in person

Counsel for the Respondent:	A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 August 2001
Date of Judgment:	29 August 2001