W276 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1466

FEDERAL COURT OF AUSTRALIA

W276 v Minister for Immigration & Multicultural Affairs [2001] FCA 1466

MIGRATION - refugee - Refugee Review Tribunal - Syrian national - fear of persecution - imputed political opinion - adverse findings by Tribunal - no ground of review disclosed - application dismissed

W276 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W276 OF 2001

FRENCH J
PERTH
15 OCTOBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W276 OF 2001

BETWEEN:	W276 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	15 OCTOBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant 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	W276 OF 2001

BETWEEN:	W276 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	15 OCTOBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant is a citizen of Syria.  He arrived in Australia on 23 August 2000, without a visa.  He was interviewed by an officer of the Department of Immigration and Multicultural Affairs on 26 August.  He said he had an army book and a Syrian identification paper which would identify him.  He also had a passport, but he had thrown that into the sea.  His father, mother, two sisters and two brothers remain in Syria.  He told the officer that he had departed from Syria through Dubai, Singapore and Indonesia.  He explained his reason to the officer.  He said he was oppressed by an army officer and his son.

2. The applicant said he and his sister were studying at an institute in Syria.  One of their fellow students, whose name was Haidar, had made approaches to her.  She complained to the applicant about these approaches.  He approached Haidar who said he was the son of an army officer and he could do what he liked.  They argued and had a fight.  After half an hour an armed patrol came and took the applicant to a place where he was put in a small cell.  He said they told him that he had insulted a high-ranking official.  He was kept in the cell for four days.  He was threatened and then released.  He went home for two days.  After that he went back to the institute.  He warned his sister to keep away from Haidar.  However, the day after he returned his sister came to him in tears.  She told him Haidar had said bad words to her.  He confronted Haidar and hit him.  The applicant could not control himself.  He hit Haidar until he bled.  He took his sister and ran away and did not want to return to the institute.  He told his father what had happened and his father told him to go and stay with his sister at his brother's house. His father subsequently arranged for him to get out of the country and got him a passport for that purpose.

3. The preceding is a summary of what the applicant told the departmental officer at the first interview.  He provided a more elaborate account in February 2001.  In that account he said that during the first argument with Haidar, Haidar had slapped him on the face.  In responding to Haidar he had abused Haidar's father, the government and the president.  He had said the government was repressive and exploitative and that it was a regime in which the powerful exploit the weak.  An armed patrol came to get him and bashed him extremely hard in front of the students.  They then took him by car to the local public security branch.

4. The applicant also described in this statement his second confrontation with Haidar.  On the second occasion he beat Haidar very hard until his nose bled.  He also said that after telling him to go and stay at his brother's place his father tried to speak to Haidar's father.  One of the assistants at Haidar's father's office said he would not speak with him.  His father was told that Haidar's father could disregard the injury to his son's nose, however he would not tolerate being abused in front of students, nor could he tolerate the abuse of the state and the president.  The applicant's father was told that the case was now with the intelligence branch.

5. The applicant applied for a protection visa on 17 March. That application was supported by a statutory declaration.  There was an explanation of the events which had led up to his leaving Syria.  This explanation brought in even more detail. He was also interviewed by a delegate of the minister or by the officer of the department who had to decide whether to issue him a protection visa.  The protection visa was refused by the minister's delegate on 9 April.

6. On 11 April, the applicant applied to the Refugee Review Tribunal for a review of that decision.  The Tribunal had a hearing on 28 May.  The applicant gave oral evidence at that hearing and provided a further submission.  The Tribunal also later invited further submissions on matters of concern to it from the applicant through his migration agent.  Further submissions were made.  On 19 June the Tribunal affirmed the delegate's decision not to grant a protection visa to the applicant.   On 4 July, the applicant lodged an application in this Court for a review of the Tribunal's decision.  The only ground of review set out in the application was that the decision was not fair enough. 

7. In dealing with the applicant's case the Tribunal referred to his evidence and submissions.  It identified four main areas of concern about his evidence.  These were set out in the letter sent to the applicant and his adviser after the hearing and were as follows:

   1.The applicant had failed to make any mention of insulting or abusing the State of Syria or its president when he first arrived in Australia.

   2.It was implausible that the applicant and his sister had returned to the institute where she had been seriously harassed and where Haidar had said he would sexually abuse her.

   3.It was implausible that he would be able to hide at his brother's home for a month when the authorities knew he was there and were searching his family home at any time of the night or day.

   4.The applicant claimed he was able to leave the country in his own name although the intelligence authorities wanted him.

8. Each of these matters was responded to in the submission.  As to the first matter, it was submitted that he was extremely tired after travelling for sixteen days and had not realised he could tell the truth when he reached Australia.  Because he had a Syrian interpreter he said he was fearful the information would get back to Syria and put his family at risk.  On the second matter about his sister's return to the college he said that the cost of a year's study was 60,000 Syrian lira and it was not possible to get a refund.  He believed that as long as he kept away from Haidar at the institute nothing further would happen.  On the third issue of avoiding arrest at his brother's home, he said he never stayed in the house in the daytime.  He returned home late at night to sleep and could have escaped through a window if that became necessary.  On the fourth matter concerning his departure from Syria he said the smugglers had made all the arrangements, all he had to do when asked his name at the airport was to say, "Yes" and the officer said, "God be with you", and let him through.

9. The Tribunal said that the applicant's claim was a claim of fear of persecution for reasons of political opinion, that is, political opinion he was thought to hold because he insulted the State and the President.  The Tribunal reviewed the evidence and rejected his statement that he had insulted the State and the President in Syria.  It found that this part of his story was fabricated.  It did not think that he would have failed to mention it at the initial interview in February if it were true.  The claim in his statutory declaration that he was questioned about membership of the band, Muslim Brotherhood, led the Tribunal to the belief that the applicant had built on his claims over a period of time.

10. On the question of his return to the institute after the first incident, the Tribunal found it implausible that he would have returned.  In the circumstances, after four days of imprisonment and torture with no assurance of safeguards and no action against the student, Haidar, it did not accept that his claim to have paid a significant amount in college fees would make any difference.  The Tribunal found this part of the story to be fabricated.  It found that the applicant was not detained or tortured as he claimed.  It found that his sister was not at serious risk as he claimed.  It went on to consider his story that he went to his brother's house and remained there for a month.  After considering that story, the Tribunal did not accept that the authorities looked for him either at his parents' home or at his brother's place.

11. Finally, in relation to his departure from Syria, the Tribunal did not accept that he would have been able to leave Syria if, as he claimed, he was of concern to the authorities.  If he had been of concern to the authorities and the smuggler wanted to be sure of his payment, the smuggler would have arranged for documents in another name.  The Tribunal concluded that the applicant was not of any concern to the authorities, had not been detained or tortured, and had no difficulty leaving Syria.  The Tribunal could not be satisfied that his claimed fear of persecution for a Convention reason was well-founded.

12. The grounds upon which this Court can review a decision of the Tribunal are limited to those set out in s 476 of the Migration Act 1958 (Cth). None of those grounds appears in this case.

13. For those reasons the application will be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:              October 2001

The applicant appeared on his own behalf
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 October 2001
Date of Judgment:	15 October 2001