Louka v Minister for Immigration and Multicultural Affairs

[1999] FCA 1880

FEDERAL COURT OF AUSTRALIA

Louka v Minister for Immigration & Multicultural Affairs [1999] FCA 1880

ISSAM HERMEZ LOUKA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 822 OF 1999

EINFELD J
4 NOVEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 822 OF 1999

BETWEEN:	ISSAM HERMEZ LOUKA Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EINFELD J
DATE:	4 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks a review of the decision of the Refugee Review Tribunal given on 19 August 1999.  The application for review provides no grounds at all for disturbing the decision of the Tribunal, nor does it identify any legal or other errors which the Tribunal made.  In the ordinary course of the preparation of this hearing, the parties were invited to make written submissions in support of or against the application for review respectively.  The applicant has provided no submissions at all.  He explains that he has not had any legal advice.  He has provided a paper which indicates that he made application to the Legal Aid Commission, the Law Society and the Bar Association for assistance, but he has not been given any assistance because none of the bodies consider that his case has reasonable prospects of success.

2. Today, assisted by an Assyrian interpreter, the applicant has provided some material verbally concerning his case, but none of it deals with any relevant legal error by the Tribunal.  It is explained that the applicant prepared some material in Arabic which the interpreter could not directly translate, but apparently the applicant has explained to the interpreter the contents of the Arabic document in Assyrian, and that has been translated for me.

3. In general terms the applicant has made some very generalised complaint that the Tribunal, and possibly the previous legal advisers that he has had from the Legal Aid Commission, did not understand his case.  I note that before the Tribunal he was assisted by an Arabic interpreter, so taking the Tribunal and this hearing together he seems to have been able to put his case both in Arabic and in Assyrian.  On the face of its reasons for decision, the Tribunal appears to have given comprehensive attention to all the matters raised by the applicant in written documentation and oral evidence. 

4. He arrived at Sydney airport on 23 May this year and was interviewed there by an immigration inspector with the assistance of an Arabic interpreter.  The inspector's report as quoted by the Tribunal lists the major complaints which the applicant made against the Iraqi authorities when he arrived.  Basically his complaints then were that he and his family had suffered economic hardship in Iraq and that he had himself been conscripted into the army for more than 14 years.  He explained in other documentation supplied to the Tribunal that his family are Chaldean Christians, which means that they are from northern Iraq and follow the rites of the Catholic Church, accepting the Pope as the head of their church.  Among the complaints are that as Christians they suffer discrimination and harassment from Muslims who, of course, represent the majority of the population.  In addition the applicant claims that government security officials have practised extortion on him by requiring the payment of significant sums of money in return for his being left alone.  He complains that in order to achieve anything in particular in Iraq money has to change hands, and that he does not have a lot of money and therefore has often been unable to pay what has been demanded of him.

5. He claims that various acts of harassment have taken place against members of his wife's family, and that his passport could only be obtained by a bribe.  In fact the applicant says that he and his family were smuggled into Jordan and that his wife had been seriously assaulted in Iraq prior to her departure.  None of these quite serious allegations were made when the applicant was interviewed at the airport on his arrival and in fact some have only developed over time as the applicant has had further opportunity to consider his case for refugee status.  For example, the alleged mistreatment of his wife did not arise until very late in the piece indeed, at the time of the hearing in the Tribunal which took place on 10 August 1999.  By this time the applicant had made written submissions to the department, written submissions to the Tribunal, and had given oral evidence to the Tribunal.

6. The involvement of the Court in reviewing decisions of the Tribunal is of course very limited.  The Court does not decide whether somebody is entitled to asylum as a refugee.  The Court only decides whether the Tribunal's decision on this matter has been attended by any significant legal error.  Without the assistance of any particular submissions by or on behalf of the applicant as to any such legal error, the Court is left with the task of trying to determine for itself whether the reasons for decision manifest any matter upon which some concern might be had.  My consideration of the Tribunal's decision has led me to the belief that it has given comprehensive consideration to every matter that could be raised in support of the applicant's claims including persecution on the grounds of religion, ethnic belief or imputed political opinions.  It even considered whether he might be persecuted as a member of a particular social group, the group in this case being his wife's family who appears to have suffered some form of discrimination and harassment.

7. One important matter raised by the Tribunal is whether the applicant might be persecuted upon his return because he has applied for refugee status in Australia.  Based on the documentation to which it had access, the Tribunal concluded that it is certainly possible that some such persecution might be sustained but that it was unlikely to be severe because the applicant had not attracted to himself any particular public profile in Australia following this application.  That is also a reason why this litigation has been dealt with so promptly, because delay can exacerbate the possibility of persecution on this ground.

8. The Tribunal did not accept some of the applicant's allegations.  The Court has often commented on the problems that are caused by unreasoned findings of lack of credibility on the part of applicants for refugee status and has pointed out that in some circumstances such findings may well be attended by error of law.  In my view this is not such a case.  The Tribunal has in fact accepted a good deal of what the applicant has alleged, conscious as it no doubt was that the human rights of Iraqi citizens are not a highlight of that society.

9. For myself I do not doubt that many of the applicant's assertions are correct, especially in relation to religious and economic hardship.  His assertions concerning extortion may well be true.  But none of these matters entitle the applicant to refugee status under the Geneva Convention on Refugees which imposes upon Australia and other signatory nations significant obligations of protection in appropriate cases. 

10. The Tribunal was no doubt correct in observing that the fact that Iraqi law might give ostensible rights to its citizens does not necessarily mean that those rights will in fact be afforded.  But these matters apply to every person in Iraq and not merely the applicant.  In my opinion the Tribunal was entirely justified in taking its stance that in all the circumstances the applicant does not have a real chance of being persecuted in Iraq for a Convention ground.  Its finding therefore that his fear of persecution in Iraq was not for a Convention reason, and was therefore not well-founded, was in my opinion justified by the evidence, and its conclusion to that effect was not attended by any manifest legal error.  As a consequence it is immune from intervention from the Court under the legislation which governs this type of case.

11. The application for an order of review against the Tribunal's decision of 19 August 1999 is dismissed.

    [AFTER DISCUSSION]

12. The respondent has asked for an order for costs.  It is quite clear that the applicant will be unable to meet any such order so that this application invites the Court to consider in the exercise of its discretion the consequence that an unmet order for costs will have or would have on any future application for visas in Australia which the applicant might wish to make.  The general view of the Court is that if an application has some apparent merit, even if it fails, an order for costs ought not to be made such as would prevent the applicant making a further application.  In my opinion this is not such a case and therefore an order for costs is appropriate.  The application will be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld.

Associate:

Dated:             4 November 1999

The applicant appeared in person.
Counsel for the Respondent:	Mr Peter Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 November 1999
Date of Judgment:	4 November 1999