W v Minister for Immigration and Multicultural Affairs

[2000] FCA 1846

FEDERAL COURT OF AUSTRALIA

W v Minister for Immigration & Multicultural Affairs [2000] FCA 1846

IMMIGRATION – refugees – application for protection visa - Syrian national – applicant travelled to Australia via Indonesia – claims to have been suspected member of Muslim Brotherhood in Syria – proscribed organisation – membership punishable by death penalty – applicant never a member of Muslim Brotherhood – no political involvement – detained for a few months on suspicion in 1983 – Tribunal rejected claims of ongoing surveillance thereafter and incident with Syrian Intelligence in 1999 -–whether reasons of Tribunal comply with s 430 – whether no evidence to justify findings – application dismissed.

Migration Act 1958 (Cth) s 430(1), s 476

Minister for Immigration and Multicultural Affairs v Singh [2000] 98 FCR 469 followed

W v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W175 OF 2000

FRENCH J
15 DECEMBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W175 OF 2000

BETWEEN:	W APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	French J
DATE OF ORDER:	15 December 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application is 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 AUSTRALIA DISTRICT REGISTRY	W175 OF 2000

BETWEEN:	W APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	French J
DATE:	15 December 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. W is a citizen of Syria born in Damascus on 5 September 1965.  He is unmarried.  His mother, two brothers and two sisters live in Syria.  He has not seen his father since 1990.  He is a Sunni Muslim.  On 8 October 1999 he applied for and obtained a Syrian passport.  He also obtained a visa to travel to Indonesia and on 4 April 2000 flew from Damascus to Jakarta where he arrived on 5 April.  Thereafter he contacted a people smuggler and travelled by boat to Australia where he arrived on 14 May 2000, having disposed of his passport.  He was taken into immigration detention and is presently held at the Port Hedland Detention Centre.  On 17 June 2000, he applied for a protection visa but his application was refused by a delegate of the Minister on 18 August 2000.  On 21 August 2000 he applied to the Refugee Review Tribunal for review of that decision.  On 9 October 2000 the Tribunal affirmed the decision.  On 18 October 2000 W filed an application for an order of review of the decision of the Tribunal.  The application came on for hearing on 12 December at which time W was represented by Ms Giles, appearing as pro bono counsel.

   The Applicant’s Claims

2. W said, in statements in support of his application and at the review hearing, that when he was 18 years of age and a student in the Arabic Islamic College his family wanted to migrate to Brunei.  He applied for a passport and when he did so was apprehended by Intelligence Forces, subsequently interrogated for twenty-four hours and subject to verbal and physical abuse.  He was tied by the hands and strapped across the waist on to a cross of wood and put in a position where his feet were upwards.  He was beaten.  He was asked about what Mosque he went to.  He was accused of being a member of the Muslim Brotherhood which was a group in opposition to the ruling Ba’ath Party.  He was not a member of the Brotherhood and had no political affiliation at all.  He was detained for two months and ultimately released in February 1984.  His detention included solitary confinement underground.

3. Following his release in 1984, W said, he continued to be subject to surveillance and  could not complete his studies.  He had to work with his brother to provide for his family.  He was frightened about being followed so he asked his friends and family to call him by another name.  He moved to different houses staying with an aunt, an uncle and his grandfather at different times.  Whenever he went to the market he was followed.  He said he was afraid of being taken into detention again and interrogated.  He said he always lived in fear and was scared whenever he heard knocking on the door.  In 1990 when Iraq invaded Kuwait, Intelligence Forces came to his home.  He said his father, who was doing his morning prayers at that time, was taken into detention and has not been seen since.  His chronology in support of his application for a protection visa then moved forward to 1998 when he said he started work in a T-shirt shop through the good offices of one of his mother’s friends.  He would work in the shop and sometimes sleep there in a bed provided for him and otherwise go to one of his relatives’ houses to stay. 

4. In September 1999, according to his statement in support of the protection visa application, W was in a car driving in Erbine with the friend who had arranged for him to work in the T-shirt shop.  Another vehicle deliberately hit them head-on.  His car was damaged.  He returned home and told his mother he could not work any more because of his fear.  He stopped working and stayed in his home all the time.  The harassment and fear he claimed to have lived with over this time – presumably since 1984 – made him weary and anxious.  He found it very hard to cope with being watched all the time.  His mother wanted him to get out of Syria.  She sold a shop she owned and gave him some of the proceeds.  She told him about a smuggler and a rural area where there was a group of people arranging to go to Australia.  He went to that area and was given the telephone number of someone who could help him leave Syria.  He said he went to the Syrian Department of Immigration and applied for a passport which he was issued on 8 October 1999.  He was given a passport valid for six years under which he could travel to all countries except Iraq or Israel. 

5. In a submission put by his former lawyers to the Refugee Review Tribunal he added that his release in February 1984 had been procured by his family’s intercession with certain “influential people”.  In respect of the head-on collision in September 1999 he said he believed that was an attempt on his life by Syrian authorities.  He also said that he had obtained his passport after bribing a Colonel who removed his name from a black list and accompanied him at the airport to ensure that he was able to leave the country.

6. In the Tribunal’s reasons referring to his claims and evidence which included his oral evidence, there was a further claim that his release in 1984 had been procured by the payment of bribes.  In answer to the question “why did you come to Australia”, he had said in his initial interview on 18 May, that he heard people were going to Australia and that Australia was welcoming all people no matter where they were from.  He was looking for a safe secure place to live.  He had also said at that time that he did not want to return to Syria because it was very hard to live there and he could not settle down and get married because of the cost.   At the oral hearing he told the Tribunal that he had been able to avoid compulsory military service in Syria by paying a bribe of 25,000 Syrian pounds.  He referred to his father’s arrest in 1990 and was asked why he thought his father had been arrested.  He replied that his father was very religious and frequently attended the Mosque.  However, he did not have any political involvement at any time.

7. In relation to his 1983 detention, he told the Tribunal that he believed that someone from the Ba’ath Party must have informed on him saying he was associated with the Muslim Brotherhood.  He was very religious at that time although he is not so committed now.  He was asked to explain an apparent discrepancy about the duration of his detention.  In his initial interview he had said it was about two months, but in his protection visa application he said he was in detention from October 1983 to February 1984.  He said it was about two months between the end of one school period and the beginning of the next.  He did not know whether his father had been questioned or detained during that time.  When it was put to him that he would have found out when he came home after his detention he said his father had said nothing about being questioned or arrested.   He had himself never been questioned or arrested by Syrian authorities after 1983.  He reasserted however that he had been under surveillance.  He said whenever he went out he would see someone following him and the person had an electronic device.  This went on from 1984 when he was out of detention until he left Syria in 2000.

8. Asked further about the car accident in September 1999 he said his employer was driving and their car hit another at the crossroads.  For the first time he asserted to the Tribunal that there were four intelligence officers in the other car and that one of those officers was killed.  When the accident happened, he and the driver had run away.  He was asked whether there had been any investigation of the accident.  He said he didn’t know.  The Tribunal put to him that since it was a fatal accident involving Syrian intelligence, it seemed unlikely that there was no investigation.  However he maintained nothing happened to him after the accident even though he ran away and stayed with somebody.  It was put to him that the numberplate of the car in which he was travelling would have been seen and the accident followed up.  He reiterated that he knew nothing about what happened after the accident.

9. In respect of the issue of his Syrian passport in October 1999, he told the Tribunal that he had paid $US3,000 to a Syrian army officer in charge of the Palestinian branch in Damascus to arrange the passport for him.  He also arranged the visa to Indonesia.  His mother knew this officer via their neighbours because the officer was a brother of one of their neighbours.  He was known apparently as a person who could arrange documents.  Asked what he feared if he were returned to Syria, he said he would be executed.  They would ask him about the member of the Intelligence who had been killed in the car. 

   The Country Information

10. After referring to W’s claims, the Tribunal went on to consider independent country information.  The US State Department in its country report on human rights practices for Syria in 1999, a report released in February 2000, had referred to the powerful role of the security services in government which extends beyond matters of security and stems in part from the state of emergency which has been in place almost continuously since 1963.  Various branches of the security services operate independently of each other.  Their members commit serious human rights abuses.  The Ba’ath party dominates the political system and the citizens do not have the right to change their government.  There is no organised political opposition and there have been very few anti-regime manifestations.  Serious abuses include reports of extra-judicial killings, the wide spread use of torture in detention, poor prison conditions, arbitrary arrest and detention, prolonged detention without trial and fundamentally unfair trials in the security courts. The Amnesty International Annual Report for 2000 referred to the arrest of hundreds of people and their detention during 1999 apparently for political reasons.  They included members of unauthorised Islamist groups, one of which is the Muslim Brotherhood.  Middle East International, in its editorial of 16 June 2000, discussing the approach of the late President Al-Assad’s successor, his son, Bashar, indicated that he had never shown any sign of breaking with his father’s policies in media interviews he had granted over the past few years.  For all his talk of economic reform and administrative transparency he had tended to steer clear of specifics regarding political liberalisation.  The Economist, in its issue of 22 July 2000, spoke of the continued cloying adulation by the media of Bashar and how any Syrian journalist who departed from that line would have his work permit confiscated.  The Department of Foreign Affairs and Trade in a cable dated 13 August 2000, referred to by the Tribunal, said it was plausible that somebody could be arrested and detained for six months without trial or access to friends and/or relatives for speaking out against the government.

11. Political and religious institutions in Syria are discussed in Revolutionary and Dissident Movements of the World – An International Guide (1991, Longman Current Affairs, London, 3^rd Edition) which was also mentioned by the Tribunal. In that text the Syrian Arab Republic is described as a “socialist popular democracy” with an executive president who is the Secretary General of the Ba’ath Arab Socialist Party and also President of the National Progressive Front which embraces the country's five legal parties. The government, the Ba’ath Party and the armed forces are dominated by members of the minority Alawite Sect of the Shia Moslem community which constitutes about twelve per cent of the country’s population against the seventy per cent who are Sunni Muslims. Sunni Muslims have strongly opposed the 1973 Constitution and demanded that it should recognise Islam as the State religion. Principal opposition to the regime of the late President Assad came from Muslim extremists within the Sunni community, their strongest organisation being the Muslim Brotherhood.

12. The Muslim Brotherhood, according to the same text, was a manifestation of Syrian fundamentalism.  The Brotherhood’s Syrian branch had engaged, from the 1960’s onwards, in “… a bloody struggle with the now Alawite dominated Ba’ath regime”.  It also advocated Islamic fundamentalism, free elections, a less government-controlled economy and an end to Alawite dominance.  The Muslim Brotherhood was considered a major threat to the Syrian government following a terror campaign in the 1970s and 1980s and Brotherhood members were treated accordingly.  A law was passed in July 1980 instituting the death penalty for membership of the Brotherhood.  An amnesty was promised in the legislation for Brotherhood members who left the movement within a month.   The Tribunal went on to say:

    “While the human rights situation remains poor in Syria, there was until recently considerable evidence that there had been some softening of attitudes to the Muslim Brotherhood in the last few years.”

    It then referred to a Reuters’ Business Briefing of 12 November 1998 which discussed President Assad’s concept of change espousing a “gradual perestroika” in relation to both economic and political matters.  A presidential amnesty had been announced for twenty five prisoners of conscience and a visit by the Secretary-General of the Muslim Brotherhood had been allowed.  Another Reuters’ Report of 5 June 1998 had referred to the release of more than two hundred political prisoners by the Syrian government although at that time a further five hundred were believed still to be in prison.  In 1997, the Department of Foreign Affairs and Trade had indicated that it had not been aware of any recent arrests relating to membership of the Muslim Brotherhood in Syria.  The most recent arrest on its database of human rights cases was in 1991.  A vast majority of arrests and interrogations connected with the Muslim Brotherhood had taken place in the 1980s.  Nevertheless there was no formal move to repeal the 1980 law imposing the death penalty on Brotherhood members.  The Tribunal went on to observe that reports by major human rights organisations on the events of 1999 in Syria suggest there continued to be no tolerance of political opposition, including that from the Muslim Brotherhood.

13. In relation to the return of Syrians who had arrived in Australia illegally, a report from the Department of Foreign Affairs and Trade (“DFAT”) indicated that General Hariry, the Head of Immigration in the Ministry of the Interior for Syria, said that all Syrian nationals currently unlawfully in Australia would be allowed to return to Syria without question.  DFAT advised in 1997 that there was no reason to believe that applying for a protection visa would in itself be cause for harm from the Syrian authorities.  Their actions were far more likely to depend on factors which led the applicant to leave Syria in the first place.

    The Tribunal’s Reasons for Decision

14. The Tribunal had difficulty with W’s credibility.  It observed major discrepancies in his written and oral accounts of his claims.  In his initial interview and his protection visa application, he claimed that he obtained a Syrian passport legally.  In his account at the Tribunal hearing, he said he obtained it by paying a bribe to an army officer who also arranged for his Indonesian visa.  He made no mention of the 1999 car accident in his initial interview.  He mentioned it in his protection visa application but did not say at that time that the car with which he collided contained Syrian intelligence officers or that one of them was killed.  At the Tribunal hearing he gave the death of the intelligence officer in the car accident as a reason for fearing harm from Syrian authorities.  In his initial interview he had said he did not want to return to Syria because it was very hard to live there and it was expensive to marry and settle down.

15. The Tribunal accepted that W was arrested and detained in 1983 as a suspected member of the Muslim Brotherhood.  In relation to his father’s arrest, he had given no reason for it beyond saying that his father was very religious.  The Tribunal accepted that there may have been some reason related to his ethnicity for his father’s arrest.  However, it seemed his father had no political involvement of any kind and was highly implausible that he would have been kept in detention for nearly ten years.  While it might have been the case that his father did not return home after his detention, the Tribunal did not accept that he continued to be detained by Syrian authorities. W did not say he himself had been questioned at the time of his father’s arrest.

16. The Tribunal referred to the vagueness of his evidence about the continuing surveillance since 1983.  Given his absence of any political connections, the Tribunal did not accept that he would have been under surveillance for such a long period of time.  If the authorities believed he had been involved in any anti-government activity they would have arrested and interrogated him at some time over that period.  In connection with the accident, the Tribunal did not accept his account of it either being deliberately caused by the occupants of the other car or resulting in the death of a Syrian intelligence officer.  It considered that the account of the car accident had been subsequently embellished to provide a reason for his fear of being investigated and executed on his return to Syria.  The Tribunal considered his claim about obtaining the passport through a Syrian army officer to be fanciful and did not accept it.  The fact he did have in his possession a legal passport supported the conclusion that he was not of interest to the Syrian authorities when he left the country, apparently without any hindrance, from Damascus airport.  The Tribunal concluded thus:

    “The Tribunal accepts that the applicant was detained for a period in 1983 for a Convention reason, and that the treatment he received while in detention was sufficiently harmful to amount to persecution in a Convention sense.  The applicant has not, however, had any confrontation with the Syrian authorities since his detention in 1983, despite the fact that the Syrian regime is known for its arbitrary arrests and suppression of any manifestation of political dissent.  The applicant has stated that he has never had any political involvement in Syria.  The Tribunal has found that the applicant left the country legally, and there is no evidence to suggest that he will suffer any penalty on his return (see DFAT cable, page 13).  In these circumstances, the Tribunal is not satisfied that there is a real chance that the applicant will be persecuted if he returns to Syria.  His fear of persecution is therefore not well-founded.”

    Grounds for Review

1. The original application for review of the Tribunal’s decision was handwritten by the applicant and of little assistance in exposing any admissible grounds under the Migration Act 1958 (Cth). However the application was amended by leave at the hearing. In summary, the grounds which were substantially particularised, were as follows:

   1.In relation to its finding that there had been a “softening of attitude to the Muslim Brotherhood in the last few years” the Tribunal failed to expose its reasoning process, contrary to s 430(1)(b) of the Migration Act and had no evidence or other material available to it to support the conclusion (Grounds 1 to 3).

   2.In relation to its finding that W lacked credibility in respect of his contention that he had obtained his passport legally, the Tribunal failed to expose its reasoning process (Ground 4).

   3.In relation to its findings about W’s testimony concerning his father’s disappearance and detention, the Tribunal failed to expose its reasoning process contrary to s 430(1)(b), failed to refer to evidence or other material upon which it made the finding that it was implausible that the father had been detained for ten years and had no evidence to form that conclusion (Grounds 5 to 7).

   4.In relation to the motor vehicle collision in September 1999 there was no evidence to support the Tribunal’s conclusion that W lacked credibility (Ground 8).

   5.In relation to its finding that W lacked credibility because he gave different reasons for wishing to stay in Australia, the Tribunal’s finding constituted either an error of law or a failure to expose the reasoning process or amounted to a decision based on no evidence (Ground 9).

   6.In relation to its finding that there was no evidence to suggest that he would suffer any penalty on his return, the Tribunal, it was said, had no evidence or other material to reach that finding and had failed to refer to evidence or other material upon which it based that finding (Grounds 10 and 11).

   Statutory Framework

2. The provisions of the Migration Act 1958 (Cth) relevant for present purposes are the following:

   “430(1)  Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

   (a)sets out the decision of the Tribunal on the review; and

   (b)sets out the reasons for the decision; and

   (c)sets out the findings on any material questions of fact; and

   (d)refers to the evidence or any other material on which the findings of fact were based.”

   Subsection (2) was repealed in 1998 and subs (3) is not relevant for present purposes. The available grounds for review of judicially-reviewable decisions are set out in s 476 of the Act and relevantly for present purposes they are:

   “476(1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

   (a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

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   (e)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 by the person who made the decision, whether or not the area appears on the record of the decision;

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   (g)that there was no evidence or other material to justify the making of the decision.

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   (4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

   (a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

   (b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

   The Obligation to Provide Reasons

3. The content of the obligation imposed by s 430 and its status as a procedural requirement of the kind contemplated by s 476(1)(a) was recently considered by the Full Court in Minister for Immigration and Multicultural Affairs v Singh [2000] 98 FCR 469. In that case their Honours held:

   1.The statement of reasons provided under s 430 is the record of a reviewable decision. It is the decision which is reviewable, not the statement of reasons for it (par 23).

   2.The duty to set out findings of fact and reasons imposed by the section is a duty to record thought processes which actually preceded and provided the foundation for the making of the decision (par 34).

   3.The giving of the s 430 statement is appropriately seen as a procedure “in connection with” the exercise of the power of decision as it is an incident of its exercise (par 34).

   The content of the obligation was, in summary, explained thus:

   1.Section 430 requires a recording of the decision to which the Tribunal came, the actual reasons for coming to that decision, the findings of fact that were actually made and the material on which those findings were based.  It does not impose any obligation on the Tribunal to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached (par 44).

   2.There is no requirement in s 430 for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine any finding it made (par 46).

   3.The preceding proposition is subject to the requirement under s 430(1)(c) that the Tribunal set out its findings on material questions of fact – materiality being determined objectively.  That is to say the Tribunal must make findings on questions of fact that are central to the case raised by the material and evidence before it (pars 47 and 60).

   4.The material facts are not only those ultimate facts specified by the statute such as the existence of a well-founded fear of persecution.  They extend to facts which are necessary to complete the logical chain the Tribunal has adopted as the basis for its decision (pars 54 and 55).  A fact is material if the decision in the practical circumstances of the particular case turns on whether that fact exists.

   Whether the Tribunal Erred

4. It is convenient under this heading to deal together with each of the grounds with respect to each of the findings which are impugned.

5. The first aspect of the Tribunal’s reasons which is criticised in this respect is its alleged finding that there had been a “softening of attitudes to the Muslim Brotherhood in the last few years”.  The actual observation made by the Tribunal at p 11 of its reasons was:

   “While the human rights situation remains poor in Syria, there was until recently considerable evidence that there had been some softening of attitudes to the Muslim Brotherhood in the last few years.”

   This observation having been made, it was supported by reference to country information detailing the release of political prisoners and the permitted visit of the Secretary-General of the Muslim Brotherhood.  Nevertheless the Tribunal went on to point out:

   “…that there continues to be no tolerance of political opposition, including that from the Muslim Brotherhood.”

   In my opinion the observation which is referred to in the first ground of review was taken out of context.  What the Tribunal said on that point was fully explained and, in any event, played no significant role in the final decision that it made.  This also disposes of ground 2.  And, having regard to what the Tribunal actually said on the point, the third ground asserting no evidence or other material in relation to the softening of attitude is misconceived and also fails.

6. The second finding which is impugned for want of sufficient exposition in the reasons is the Tribunal’s finding that W lacked credibility because he said he obtained his passport legally.  As to this, what the Tribunal actually said in its reasons was:

   “In both his initial interview and his Protection Visa application, he claimed that he obtained a Syrian passport legally.  In his account at the Tribunal hearing he said that he obtained his passport by paying a bribe to an army officer, and that this officer also arranged for his Indonesia visa.”

   As particularised, the ground is really a complaint about the logic of the Tribunal.  It is contended that W’s initial statement that he obtained his passport legally was entirely consistent with evidence that he got it by way of a bribe.  To the extent that the Tribunal’s conclusion of “inconsistency” in his statements about the obtaining of the passport is open to criticism, it is not a criticism that raises a failure to comply with s 430.  As the Full Court said in Singh at par 45:

   “If,…the reasoning process actually adopted by the RRT, as exposed by the statement, is unsatisfactory, that does not mean that there has been a failure to comply with s 430; it means that the decision was grounded in reasons which a court finds to be unsatisfactory, with whatever consequences (if any) that may entail.”

   In any event, the Tribunal’s reasons indicate that it considered the claim relating to the obtaining of the passport from a Syrian army officer with a bribe to be fanciful.  It concluded that he had a legal passport and that this supported the view that he was not of interest to the Syrian authorities.  There is no basis for review of that finding for want of sufficiency of the statement of reasons.

7. The finding next attacked by the grounds of review relates to the determination that W lacked credibility in the evidence he gave about his father’s disappearance.  In this connection the Tribunal said, at pp 14-15 of its reasons:

   “The applicant has stated that his father was arrested in 1990, but gives no reason for this arrest, beyond stating that his father was very religious.  Given that the family appears to have had Iraqi ancestry, and Syria was opposed to Iraq in this conflict in 1990-91, there may have been some reason related to his ethnicity for the applicant’s father’s arrest.  However, according to the applicant, his father had no political involvement of any kind, and it seems highly implausible that he would have been kept in detention for nearly ten years.  It may be the case that the applicant’s father did not return to his home after his detention, but the Tribunal does not accept that he continues to be detained by the Syrian authorities.  The applicant does not claim to have been questioned himself at the time of his father’s arrest.”

   This determination was not used as a basis for a finding that W lacked credibility.  Rather, the Tribunal did not find the account to be credible.  The premise upon which ground 5 of the grounds for review is based is incorrect as a characterisation of the Tribunal’s reasoning.  It had already indicated that it had difficulties with the applicant’s credibility by reason of what it called “major discrepancies” in his written and oral accounts of his claims.  The Tribunal’s rejection of the contention that his father had been kept in detention for nearly ten years was based upon the inherent improbability of that story in the circumstances that his father had no political involvement of any kind.  The Tribunal’s reasons for coming to that conclusion are adequately exposed and it has complied with s 430 in that respect.  This disposes also of grounds 6 and 7 of the application which assert a failure on the part of the Tribunal to refer to the evidence or other material upon which it made that finding and that it had no evidence to make the finding.

8. In connection with the motor vehicle collision in September 1999, the amended grounds for review assert that the Tribunal found the applicant lacked credibility because of its finding that his evidence was implausible in relation to the motor vehicle collision.  In truth, the finding of want of credibility so far as it relied upon testimony about the car accident, related to his failure to mention it at all in initial interview, the failure to mention vital elements of the story in his protection visa application and, related to that, the late embellishment of the incident before the Tribunal hearing.  Again the Tribunal was, in the circumstances, entitled to reject the story about the motor vehicle collision which, it must be said, on the face of it sounds extremely improbable.  There is no question of the application of the no evidence ground.  What the Tribunal in effect did in this case was to reject the evidence of the applicant.

9. Then it is said that the Tribunal found want of credibility on the part of W on the ground that he had given different reasons for wishing to stay in Australia to the reasons given at his first interview.  Again, as particularised, this ground was in essence a criticism of the Tribunal’s reasoning.  It did not expose any error of law, want of sufficiency in the statement of reasons or justifying a decision on no evidence.  What the Tribunal said on this point, as part of its recounting of discrepancies affecting W’s credibility, was: 

   “In his initial interview, he said he did not want to return to Syria because “it is very hard to live there” and it is expensive to marry and settle down.”

   Now it may well be the case that that answer in the context of the other statements made in the initial interview should not be taken as affecting W’s credibility.  But that is a question of characterisation and inference which is the province of the Tribunal.

10. The final finding of the Tribunal which is criticised is the finding at p 16 of the reasons expressed thus:

    “The Tribunal has found that the applicant left the country legally, and there is no evidence to suggest that he will suffer any penalty on his return (see DFAT cable, page 13).”

    In the particularisation of this ground it is said that the DFAT document referred to in the decision stated that Syrian nationals would be allowed to return without question.  It made no comment concerning their fate once they were returned.  Moreover it said that the actions of the Syrian authorities would depend, “…on the factors which presumable (sic) led the applicant to flee Syria initially”.  Information from Canadian authorities also referred to fines and imprisonment imposed upon asylum seekers who left Syria illegally.  Reference was also made to the Syrian law which imposed the death penalty on members of the Muslim Brotherhood and W’s belief he would be executed on return to Syria.  Again, this is not a matter in which there was no evidence for the Tribunal to reach the conclusion that it did.  It stated that there was no evidence that he would suffer any penalty on his return and that was correct.  To say that there is no evidence that he wouldn’t suffer any penalty on his return does not negative that statement.  This, of course, must be seen in the context of the Tribunal’s finding that W was of no interest to Syrian authorities when he left the country and its rejection of the proposition that he had been under surveillance for some sixteen years prior to his departure.  It must also be seen in the context of its finding that he has never had any political involvement in Syria and its rejection of his evidence about the alleged car accident in September 1999.  In those circumstances, there is no ground for review indicated in respect of this finding.  Nor is there a failure to refer to evidence or other material on which it based its observation.  It should be noted that the observation was not an observation that he will not suffer any penalty, rather that there was no evidence to suggest that he would.

    Conclusion

11. For the preceding reasons, this application will be dismissed with costs.

I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:

Dated:             15 December 2000

Counsel for the Applicant:	Ms P Giles
Counsel for the Respondent:	Mr A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 December 2000
Date of Judgment:	15 December 2000