Nakad, Jawad v Minister for Immigration and Multicultural Affairs

[1998] FCA 527

IN THE FEDERAL COURT  OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1057  of   1997

BETWEEN:	JAWAD NAKAD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	DAVIES J
DATE OF ORDER:	6 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 1057 of 1997

BETWEEN:	JAWAD NAKAD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DAVIES J
DATE:	6 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") which affirmed a decision not to grant a protection visa to the applicant, Mr Jawad Nakad, who had sought the visa on the ground that he was a refugee within the definition of Article 1A of the Refugees' Convention.  That Article defines a refugee as a person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

The function of the Court is not to consider the merits of the application for itself. The Court has a limited function only. It is to determine whether there was any error of law in the administrative decision that was taken. In this particular case, the ground of review relied upon is the ground specified in s 476(1)(e) of the Migration Act 1958 (Cth), namely that the decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.

Mr A.J. O'Brien, counsel for the applicant, has not pointed to any express statement in the reasons for decision which on its face is an incorrect expression of the applicable law, however he has pointed to aspects of the decision and has submitted that, by analysing the reasoning process and the findings made, an inference can be drawn that the Tribunal had a misunderstanding of the law which was to be applied.  I agree with Mr O'Brien that one can look further than the express statements of the Tribunal and one may look at the reasoning process in order to determine whether or not the Tribunal approached its task in a correct fashion.

The substance of the points put by Mr O'Brien was that, in his submission, the Tribunal approached the matter from the background of what had occurred to the applicant whilst he was in Lebanon and had not considered what would be the likely consequence of returning the applicant at this point of time to Lebanon.   Mr O'Brien pointed to three particular matters.  In the first place the Tribunal said:

"The applicant's own evidence indicates that he was a low-level supporter of General Aoun who engaged in peaceful activities to demonstrate his support for the General.  The applicant left Lebanon in 1992, some five years ago.  Thre is no evidence that even at the end of the civil war prior to his departure that he was of any interest to the authorities in Lebanon.  He was able to leave Lebanon through the airport without any difficulties.  As a mere supporter of General Aoun it follows that the applicant would face no greater harm than those people demonstrating in Lebanon on behalf of General Aoun who were released after a brief detention."

Mr O'Brien said that these remarks showed a concentration upon what had happened to the applicant in the past. 

Mr O'Brien then pointed out that the Tribunal did not, in its final summation, when it set out the crux of its reasons, refer to a matter which it had earlier mentioned, namely, that the applicant, who had arrived in Australia in 1992, claimed that in 1994 security forces had come to his parents'  house looking for him and that those looking for him had asked where he was and about his connection with General Aoun.  The Tribunal did not make any express finding as to whether it accepted that evidence although the Tribunal made a general finding that the applicant was a witness who gave his evidence in an honest and forthright manner. 

Mr O'Brien thirdly referred to a finding by the Tribunal that in 1996 there had been a hardening of General Aoun's approach to the issue of the elections following the Lebanese government's introduction of a new electoral law and that, in the 1996 elections, there had in fact been an arrest of the supporters of General Aoun at a church service in the town of Hragel.

From these matters Mr O'Brien submitted that the Tribunal did not truly weigh up the likelihood of harm to the applicant should he be returned to Lebanon.  I see force in the points made but I cannot myself draw from the reasons of the Tribunal the inference which Mr O'Brien has asked me to draw.  It seems to me that the Tribunal clearly understood the nature of its task and was looking to the likelihood of harm to the applicant should he be returned to Lebanon.

The Tribunal twice expressed its ultimate finding in correct terms saying that it was not  satisfied that the applicant faced a real chance of persecution now or in the reasonably foreseeable future for having been a supporter of General Aoun.  The Tribunal also found that:

"As a mere supporter of General Aoun it follows that the applicant would face no greater harm than most people demonstrating in Lebanon on behalf of General Aoun who were released after a brief detention." (emphasis added)

Those words seem to me to show that the Tribunal did truly look at the question whether there would be persecution of the applicant should he be returned to Lebanon.  I should also add that the Tribunal quite carefully discussed the circumstances as known to it applying in Lebanon from 1989 through 1990 and 1991, when the applicant said he was an active supporter of General Aoun, and during the later years 1993, 1995, and 1996.

Mr Tim Reilly, counsel for the respondent, has pointed out that the Tribunal relied upon cables from the Department of Foreign Affairs and Trade in both 1993 and 1995 which stated that publicly expressed support for  General Aoun was not in itself a reason for arrest in Lebanon and also upon a report by the Immigration and Refugee Board of Canada in 1996 which stated that it had no evidence that during 1995 the followers of General Aoun, even the active ones, were harassed in any substantial way.  These were only part of the material which was discussed by the Tribunal.  I am satisfied that the Tribunal did consider the whole pattern of relevant events which occurred with a view to determining what would be the likelihood of persecution should the applicant be returned to Lebanon.  

It follows in my opinion that the Tribunal approached its task in the correct manner and that there was no reviewable error in its decision.  It necessarily follows that the application must 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:             6 May 1998

Counsel for the Applicant:	Mr A J O'Brien
Counsel for the Respondent:	Mr T Reilly
Date of Hearing:	6 May 1998
Date of Judgment:	6 May 1998