NATA v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1250

FEDERAL COURT OF AUSTRALIA

NATA v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1250

Judiciary Act 1903 (Cth) s 39B

NATA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 810 OF 2003

HELY J
29 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 810 OF 2003

BETWEEN:	NATA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	29 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is 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	N 810 OF 2003

BETWEEN:	NATA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	29 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Syria.  He left Syria on 15 August 1990.  The applicant claims to have left Syria because he feared that he would be arrested and killed by the Syrian authorities because they suspected that he was associated with persons who were themselves suspected of being members of the Islamic (Muslim) Brotherhood Party (‘the Brotherhood’).  The Brotherhood was, and is, a banned organisation in Syria and was and is seen as a potential threat to the Syrian regime.  However, the Syrian regime now considers that the level of threat from The Brotherhood has receded such that it is no longer seen as a serious threat to the regime.

2. After leaving Syria the applicant went to Hungary, Austria, Germany and Denmark.  He lived in Germany for about nine years.  It is not necessary for present purposes to go into the details of the applicant’s stay in, or departures from those countries.  It is sufficient to record for present purposes that he arrived in Australia on 6 September 1999.

3. On 10 January 2001 the applicant applied for a protection visa.  An earlier application for a protection visa which he had made on 2 January 2001 was withdrawn.  The application made on 10 January 2001 was refused by the Minister’s delegate on 21 May 2001.  On 26 August 2002 the Refugee Review Tribunal (‘the RRT’) affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant.

4. The RRT did not accept that the applicant was a truthful witness.  The RRT gave its reasons for coming to that conclusion which included that the applicant had told lies to various authorities in Germany and Australia.  It was a matter for the RRT to determine whether it accepted the applicant as a truthful witness.  The RRT’s conclusion that it did not accept the applicant as a truthful witness was a conclusion which was open to it.  The applicant during the course of his oral submission this morning accepted that fact.  He accepted that he had told lies to the German and Australian authorities and accepted that he gave the RRT the right ‘not to believe me’.

5. In particular, the RRT did not accept that at the time the applicant left Syria he was suspected of involvement with The Brotherhood.  Nor did it accept that the catalyst for the applicant to leave Syria was the arrest of a personal friend.  Nor did it accept the applicant’s claim that he was advised to flee Syria by family and friends because he may be arrested and might disappear.

6. The RRT found that the applicant left Syria legally, travelling on his own passport and also found that he did not leave Syria for the reasons he claimed, but because he perceived there were better opportunities for him in Europe.  The RRT specifically found that if the applicant was returned to Syria with a temporary travel document he would be initially detained and questioned by the Syrian authorities but in the RRT’s assessment he would be quickly released.  The RRT gave its reasons for making that assessment, and it was a conclusion which it was entitled to draw.  The RRT’s ultimate conclusion was that the chance of the applicant suffering any harm at the hands of the Syrian authorities is remote in the extreme.  In the RRT’s assessment, he does not have a well founded fear; he is not a refugee.

7. On 8 July 2003 the applicant applied to this Court for relief under s 39(B) of the Judiciary Act 1903 (Cth). The sole ground on which the applicant based his claim for relief is as follows:

   ‘The second respondent committed jurisdictional error of law by misinterpreting the definition of “persecution” set out in s 91R of the Migration Act 1958 and as a result asked itself the wrong question in purporting to determine whether Australia had protection obligations in respect of the applicant.’  

8. No particulars are given of that ground.  Nor has the applicant complied with a consent order made by a Registrar that the applicant should file and serve written submissions five working days prior to this hearing date.  Nonetheless, I invited the applicant to put to me orally anything that he wanted to put in support of his application.  One always has sympathy for persons in the position of the applicant appearing in a foreign court, without legal training without the benefit of legal assistance and only able to address the Court through an interpreter, but sympathy is not enough.  I am bound by the law like everybody else and I can only interfere with the RRT’s decision if it is shown that the RRT has committed a jurisdictional error.  Nothing which the applicant put to me this morning is capable of supporting the sole ground taken in his application.  I have read the RRT’s decision in order to determine for myself whether there is anything in that decision which is capable of sustaining the ground taken by the applicant in his application.  In my view there is not.

9. The applicant’s principal complaint made in his submissions this morning is that the error into which the RRT fell was that they did not believe his claims.  As he put it to me, the RRT agreed with him that 15,000 people had disappeared in Syria: ‘Why did not they believe me?’  It was a matter for the RRT to determine whether or not they believed the applicant.  The RRT’s reasons do not disclose any error or misunderstanding as to its duties and functions.  The decision not to believe the applicant was based on the admitted facts that the applicant had persistently lied to the German and Australian authorities and, as I indicated earlier, the applicant accepted in his submissions before me this morning that this finding on credit was one which was open to the RRT, because to quote the applicant’s words, ‘I gave him the right not to believe me’.

10. The applicant urged upon me that any lies he told were told in desperation because of his fears of returning to Syria.  But that is a matter which the RRT had to take into account.  The assessment of the applicant’s credibility is a matter for the RRT and not for me.  Nothing which the applicant has put to me this morning establishes any reviewable error on the part of the RRT.  The application to set aside the determination of the RRT must be dismissed. 

11. I order that the application be dismissed with costs. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             5 November 2003

The applicant appeared in person
Counsel for the Respondent:	Justin Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 October 2003
Date of Judgment:	29 October 2003