Ouallah v Minister for Immigration and Multicultural Affairs

[1999] FCA 1330

FEDERAL COURT OF AUSTRALIA

Ouallah v Minister for Immigration & Multicultural Affairs [1999] FCA 1330

EL-HASSANE OUALLAH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 655 OF 1999

EMMETT J

14 SEPTEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 655 OF 1999

BETWEEN:	EL-HASSANE OUALLAH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	14 SEPTEMBER 1999
WHERE MADE:	SYDNEY

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
NEW SOUTH WALES DISTRICT REGISTRY	N 655 OF 1999

BETWEEN:	EL-HASSANE OUALLAH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	14 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant was born in Morocco. His mother and siblings also live in Morocco and he presently has contact with relatives in Morocco. The applicant’s wife and son arrived in Australia on 21 October 1994. The applicant himself arrived on 8 June 1995 and their daughter was born in Australia in 1997. On 5 November 1998, the applicant and his wife lodged combined applications for a protection visa. On 7 December 1998, a delegate of the Minister for Immigration & Multicultural Affairs (“the Minister”) refused to grant protection visas and, on 21 December 1998, the applicant sought review of that decision before the Refugee Review Tribunal (“the Tribunal”). On 27 May 1999, the Tribunal affirmed the decision not to grant protection visas. From that decision, the applicant has brought this application for review under section 476 of the Migration Act 1958 (“the Act”).

2. The criterion for a protection visa is that, at the time of the decision, the decision maker is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (“the Convention”).  Relevantly, the applicant would need to establish that, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, the applicant is unable or, owing to such fear, unwilling to avail himself of the protection of his own country.

3. Before the Tribunal, the applicant claimed to fear persecution for reason of his “perceived political opinions” and claimed that he would not be protected by the authorities in Morocco because they are the agents of persecution.  The applicant gave evidence before the Tribunal of political activism in the late 1970s and early 1980s.  The Tribunal accepted those claims.  In particular, the Tribunal accepted that there were violent street riots in January 1984 provoked by increases in prices and education fees.  The Tribunal accepted that the applicant was arrested, tortured for information, charged and convicted in February 1984.  The applicant claimed that there was an appeal by the prosecution against the sentence.

4. The Tribunal found that the applicant was legally represented in the court proceedings in Morocco and that the appeal was in fact by the applicant.  The applicant was sentenced finally to six months gaol and a fine of 400 derham.  The Tribunal observed that the court documents referred to the “criminal activities” of disturbing the peace and inciting public unrest, urging people to demonstrate and not paying due respect to authority and damaging a public facility.

5. The applicant was released from imprisonment on 3 August 1984, and said that he had to report regularly to the police, and notify them as he left and arrived at different cities.  While the Tribunal thought it implausible that someone in the applicant's position had to continue reporting to the police, the Tribunal nevertheless accepted that that was the case and that the applicant respected that requirement for many years.  The Tribunal observed that, even if the applicant was unable to get a government job because of his record, the applicant was nevertheless able to move around the country as he wished, find work in the mining industry, and, later, a better position in that industry.

6. The applicant attended university from October 1982 until January 1984 and from October 1986 to June 1988, was able to obtain technical qualifications, visit his family, and continue his involvement with the Union Socialiste des Forces Populaires (“USFP”).  The Tribunal also accepted that the applicant had problems from the national police because he was suspected of involvement in a strike in late 1988.  The Tribunal also accepted that the applicant suffered some mistreatment from the national police in an attempt to get information from him.  He was also detained for a week for similar reasons by local police two months later, although he was not mistreated.  The applicant, however, remained living and working at the same place for almost two years thereafter without incident.

7. The Tribunal accepted that the applicant paid a bribe to a policeman in order to obtain a passport.  However, the Tribunal did not accept that the applicant had to do that or that he had to get the help of any relative to pass over the border because he was denied a passport for a Convention reason as he alleged.  The Tribunal did not accept that the applicant was not permitted to leave Morocco because of his record. 

8. The applicant gave some evidence before the Tribunal concerning expungment of his record after five years.  The Tribunal found that evidence rather confused and did not accept it.  Although the Tribunal accepted that the applicant was active in the USFP until approximately 1988 and that he had been “arrested and convicted of criminal offences in relation to his expression of his political beliefs”, the Tribunal found that the applicant did not have a well-founded fear of persecution within the meaning of the Convention when he left Morocco in late 1990.

9. At that time, the applicant left Morocco and went to Libya where he lived and worked until June 1995. The applicant met his wife in Libya, although she is a Moroccan citizen.  The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for reason of his perceived or actual political opinion if he now returns to Morocco.  The Tribunal observed that the applicant has been out of Morocco for almost nine years and that it has been more than 15 years since the applicant was arrested and convicted of criminal, but relatively minor, offences relating to demonstrations in January 1984.  The Tribunal also observed that thousands of people arrested or jailed, including many political prisoners, have been pardoned or released or had their sentences reduced since the mid to late 1980s.

10. The Tribunal considered that, while there are still serious human rights problems in Morocco, it is implausible that the applicant would be of any interest to the authorities if he returned to Morocco.  The Tribunal did not accept that the applicant would have serious problems on return because of the manner in which he left Morocco in 1990.  He obtained a genuine passport in his own name, albeit using bribery, and he left Morocco legally.  The Tribunal did not accept as plausible the assertion that, because of his 1984 conviction, the applicant would be denied a passport.  The Tribunal noted that the applicant had registered his presence with the Moroccan authorities in Libya.  He also had his passport extended by those authorities and had his son included in the passport.

11. The Tribunal considered that those circumstances indicated that the applicant does not fear adverse interest from the Moroccan authorities.  The Tribunal accepted that Morocco is not fully democratic, that the King has very wide powers and has powerful allies in government.  However, the Tribunal accepted independent country information before it that the King and the government have taken significant steps to improve the human rights situation in Morocco.  In those circumstances, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution for any Convention reason if he returns to Morocco.

12. In his application for an order of review to this court, the applicant relied on sections 476(1)(a), (e) and (g) of the Act. Section 476(1)(a) was relied on on the basis that there was a failure to comply with the requirements of section 430. No particulars were furnished in the application of any of the grounds. While the applicant apparently had legal assistance in preparing the application, he was unrepresented before me. It was apparent that he did not understand the process adequately. He does not understand English but was assisted by an interpreter who I am satisfied conveyed to him perfectly well the meaning of my questions to him. Nevertheless, because of his lack of any training in legal matters, the applicant was unable to advance any submissions in support of his application.

13. I have considered the reasons of the decision of the Tribunal. They appear to me to comply with the requirements of section 430 in that they set out the decision of the Tribunal, the reasons for the decision and the findings of any material questions of fact. The reasons also refer to the evidence and other material on which the findings of fact were based. The application for review also relied on section 476(1)(a) in relation to alleged non-compliance with section 420 of the Act. In the light of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, that ground is not open.

14. The second ground relied on concerns alleged error of law.  The applicant was unable to articulate any proposition in support of that ground.  No error of law was apparent to me in my consideration of the reasons for decision of the Tribunal. 

15. The final ground was that there was no evidence or other material to justify the making of the decision within the meaning of sections 476(1)(g) and 476(4) of the Act. The applicant indicated, in the course of his submissions to me, that it would have been open to the Tribunal to obtain further information concerning Morocco. That is possible, no doubt. However, no attempt has been made to put before me additional material that might have been available and that would have contradicted any findings made by the Tribunal. In any event, there would be considerable doubt as to the admissibility of such material in the light of the observations made by the Full Court of this Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212. In the absence of any such material, I am not satisfied that any ground under section 476(1)(g) has been established.

16. It follows, in my opinion, that the application should be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             27 September 1999

The applicant appeared in person, assisted by an interpreter
Counsel for the Respondent:	D.H. Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 September 1999
Date of Judgment:	14 September 1999