W216 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1356

FEDERAL COURT OF AUSTRALIA

W216 v Minister for Immigration & Multicultural Affairs [2001] FCA 1356

Migration Act 1958 (Cth)

W216 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W216 OF 2001

FRENCH J
7 SEPTEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W216 OF 2001

BETWEEN:	W216 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	7 SEPTEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant is to pay the respondent's costs of the application.

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	W216 OF 2001

BETWEEN:	W216 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	7 SEPTEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

Waleed Ismail Salim, Khadija Savia, Master Ahmed Waleed Salim, Ms Asmaa Waleed Salim and Ms Israa Waleed Salim arrived in Australia by boat from Indonesia without travel documents on 23 December 2000.  On 5 January 2001, they lodged an application for protection visas with the Department of Immigration and Multicultural Affairs.  On 13 March, a delegate of the Minister refused the grant of protection visas to them.  On 16 March, they applied to the Refugee Review Tribunal for a review of that decision.  On 8 May, the Tribunal affirmed the delegate's decision not to grant protection visas.  The Tribunal did so based on its view of the credibility of the applicant, whose claims it did not accept.

1. The Tribunal referred to the applicant's statements to the delegate that his problems had begun in July 1999.  He said he had been driving a motor car when he had witnessed an accident, been stopped by a person injured in the accident and asked to take that person to hospital.  After travelling about two to three kilometres the person he had picked up asked him to stop at a shop to buy a drink.  The applicant said that the injured man had given him his car keys and asked him to go back to the car and get some documents from the glove box.  He had attempted to comply with this request, but while he was opening the car military intelligence agents apprehended him, asking him what he was doing.  He tried to explain but they took him to headquarters for questioning.  He told the delegate that later they took him to the drink shop to find the passenger whom he had picked up, but the passenger had gone.  He was placed in detention and interrogated and tortured.  He said the intelligence agents did not believe that he did not know the man.  He told the delegate that he did not know why they were interested in the man. 

2. The applicant stated that he was kept in detention and subjected to beatings, humiliation and torture.  After four months of detention intelligence agents had asked him to work for them as an informer.  He had agreed to do this in order to gain favour with them however he said they had later decided not to use him after all because he could not read or write. 

3. In a second written statement, in answer to the question why he would be trusted by the intelligence agents, he said "Everyone detained by intelligence in Syria was asked to work as an agent."  He said this was a tactic so that people would not know who was working for the intelligence service and who was not.  He told the delegate that he remained in detention for twelve months.  After this his brother paid a huge bribe to have him released.  He was taken to a remote place and kept there while travel papers were arranged for him.  An intelligence officer gave him travel papers for himself and his family after three months and told him never to return to Syria.  He said he left Syria in November 2000 and believed he would be executed if he were to return.  He said he had heard that a brother in Syria had fled the country out of fear of the consequences of his detention.

4. In a written statement the applicant's wife said she did not know what had happened while he was being detained.  She had had not known where he was.  His brother had made inquiries for her but had been fobbed off by security agents.  She said that one day, however, one of his brothers had urgently asked her for her Syrian passport and shortly afterwards she and her children were taken to the airport.

5. The applicant's adviser also claimed that the applicant had recently lost two front teeth, which had been knocked out during a beating by security agents.  It was suggested to the Tribunal that a dental examination could be performed to establish if the teeth had been lost, however the Tribunal took the view that his would not affect its conclusion about the matter.

6. At the hearing before the Tribunal, both husband and wife were separately questioned.  In his evidence, the applicant said that his wife was his third wife.  He said he was a welder by trade but had been subcontracting such work out in recent years.  He obtained other income from a grocery shop and from a taxi that he had invested in.  His wife had earlier said that they enjoyed a very comfortable life.  He said he had never engaged in violence or taken part in any political activity.  He was asked again to explain what had happened to him in July 1999.  He said it was about 10 o'clock in the morning.  He had been driving a taxi which he part owned.  He used the taxi once a week to carry goods, but did not drive it for hire. He saw a man beside a car parked on the side of the road who waved him to stop.  The man's car was not damaged but the man was holding an arm across his chest.  He could have been ill so the applicant stopped and agreed to take him to hospital.  Again, he said the man had asked him to stop at a drink store and had asked the applicant to return to his car and fetch some papers.  The Tribunal asked the applicant if this was not a strange request.  He said he thought it wasn't because his co-investor in the taxi had told him that passengers asked for strange things.  He told the Tribunal that the man's plan had been to shed him because, in taking the man to hospital he would have learned where he lived and the man wanted to avoid that disclosure.  He said that the man's request to be taken to hospital was just a trick to avoid being caught by security forces who were chasing him.  He had found out later, while he was in detention, that the man was a famous and important spy.  He told the Tribunal that all the man wanted to achieve in sending him to get papers was to put distance between himself and the applicant.

7. He was asked why Syrian forces would have asked him to spy for them if they did not trust him enough to believe that he did not have information about the man they were pursuing.  He repeated the claim he had made earlier that the authorities asked everyone in detention to spy for them.  He was also asked why it had taken over four months for the authorities to find out he could not read or write.  He said maybe they did not really want him to be a spy, but had asked him in order to test him.

8. He was asked why, if the authorities had tried so hard for a year to find out whether he was linked to a spy ring or had information about a spy, they had not once questioned his wife and family or business colleagues.  He told the Tribunal that Syrian authorities were inefficient and that it had taken them two months simply to process initial paperwork on his case.

9. He was also asked about his claim that security agents had worked with people smugglers to arrange his departure from Syria.  He told the Tribunal the bribes paid would have been a sufficient inducement.  Asked why his brothers did not try to get him free earlier, the applicant gave some further alternative explanations to the Tribunal.

10. The Tribunal found the applicant's evidence to lack credibility.  Many areas of his evidence were implausible.  There were inconsistencies in the evidence and it changed in response to Tribunal questions.  He often evaded giving direct and appropriate replies to questions asked of him.  The Tribunal said his manner and hesitation in giving answers suggested he was inventing evidence.  It accepted that he was anxious, as are all applicants for visas.  It was not satisfied that there was any credibility in his claims of having been accosted by a top spy, of having been detained and tortured and of having had to flee persecution in Syria.

11. The Tribunal analysed the story which the applicant had given. It rejected the story about the spy and the secret papers as nonsensical. It did not accept that he would have been asked to act as a spy by Syrian security and based on that and other findings, in which it rejected his evidence, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution in Syria. The Tribunal also had regard to independent evidence before it that Palestinians, such as himself and his family, are not persecuted in Syria. There was a more than sufficient basis for the Tribunal to come to the conclusion that it did that the applicant was not to be believed. The grounds for review of a decision of the Refugee Review Tribunal are those set out in s 476 of the Migration Act 1958 (Cth). There is nothing which has been shown to me which would indicate that any of those grounds apply in this case. The Tribunal has disbelieved the applicant. It had good grounds for doing so and, in the circumstances, the application will be dismissed. The applicant will pay the respondent's costs of the application.

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

Associate:
Dated:              October 2001

Mr WI Salim appeared in person.
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 September 2001
Date of Judgment:	7 September 2001