W320 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1465

FEDERAL COURT OF AUSTRALIA

W320 v Minister for Immigration & Multicultural Affairs [2001] FCA 1465

MIGRATION - refugee - Refugee Review Tribunal - Palestinian resident in Syria - credibility - no ground of review disclosed - application dismissed

W320 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W320 OF 2001

FRENCH J
16 OCTOBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W320 OF 2001

BETWEEN:	W320 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	16 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	W320 OF 2001

BETWEEN:	W320 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	16 OCTOBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant is a Palestinian who is resident in Syria and is registered there with the United Nations Relief and Works Agency ("UNRWA").  He came to Australia without a passport on 11 September 2000 after travelling by boat from Indonesia.  On 19 March 2001, he lodged an application for a protection visa.  On 2 May, that application was refused.  On 2 May, he applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision.  On 27 June, the Tribunal affirmed the decision not to grant him a protection visa.

2. On 20 July, the applicant filed an application in this Court seeking an order for review of the Tribunal's decision.  His grounds for review were that he could not go back to Syria and that the Tribunal member was not just.  In a submission made to the Tribunal on 12 June, the applicant's solicitors summarised his claims.  They were as follows:

   1.The applicant is a Palestinian from Damascus, Syria who, until the middle of 2000, was working in the family restaurant.

   2.In January 1997, a Lieutenant Colonel in the Syrian army became a tenant in the applicant's father's building.  He used the premises to hold political meetings for Socialist Party members.  The applicant and his best friend, A, joined the meetings where they learned that one of the main objectives was to overthrow the ruling party.   They did not join the party.

   3.In July 1997, the Lieutenant Colonel was dismissed from the Syrian army and no longer used the apartment.  The applicant continued their involvement through a business venture until October 1999 when it ended.

   4.In June 2000, the former Lieutenant Colonel asked the applicant to become more actively involved in the Socialist Party.  The applicant and A did not join the party but wrote anti-government graffiti and distributed pamphlets.  They participated in this sort of work for about twenty days after the death of President Assad.

   5.At the beginning of July 2000, A was arrested and the applicant fled from his home.  The Mukhabarat came looking for him at his house.  His father was arrested, detained and asked about his whereabouts. Then his brother was detained in exchange for his father's freedom.  He was held for seven days but did not tell the authorities about the applicant's whereabouts.

   6.The applicant remained in hiding while the Mukhabarat continually questioned his family.  His brothers made arrangements with a smuggler and on 28 August he left Syria illegally.

3. In its reasons for decision the Tribunal indicated that it wrote to the applicant in June 2001 inviting him to give oral evidence and present arguments at a hearing.  Initially, the applicant said he wanted to give oral evidence.  However, at the hearing on 21 June he decided he did not wish to do so.  He asked the Tribunal to make a decision with all speed on the material already before it.  The Tribunal declined to give a decision immediately and later wrote to the applicant and his advisers drawing attention to the inconsistencies in his claims.  It invited him to give an explanation of them.  The applicant sent a fax to the Tribunal on 27 June saying he wanted their decision and did not want them to ask him any more things.  Because of this reply, and the fact that there were no submissions from the applicant's advisers, the Tribunal proceeded to finalise its decision.

4. After setting out this history, the Tribunal then looked at the statements which had been made by the applicant in support of his case.  The Tribunal noted, among other things, that the applicant had not mentioned the Socialist Party in his initial interview when he arrived in Australia.  It had asked him about that at the hearing and it was at that point that the applicant said he did not want to answer the Tribunal's questions.  The Tribunal found that the evidence before it did not show the applicant to have a well-founded fear of persecution under the Convention.

5. There were a number of matters that the Tribunal referred to in its reasons affecting the credibility of the applicant's evidence.  There was the failure to refer to the Socialist Party at his initial interview.  There are several parties in Syria which have the word "Socialist" in their title, all of which are affiliated with the government.  There was therefore, from the Tribunal's point of view, a lack of credibility in the claim that Syrian authorities would persecute people connected with a socialist party.

6. The applicant had referred to a person called Duraid.  He had said in a written statement that Duraid was the name of the "President of the Socialist Party", but that claim was not supported by independent evidence.  He had indicated that Abu Duraid was another name for Rifaat al Assad.  On another occasion he said Duraid was a son of Rifaat al Assad.  The Tribunal thought that these inconsistencies suggested he did not really know what he was talking about. 

7. The Tribunal was also puzzled about the applicant's use of the terms "king" and "monarch" in reference to Syria.  It understood that when he used the expression "No to royalty", he was talking about the way in which the late president handed down power to his son, but his specific references to a "king" conveyed more than that.  The Tribunal said it would not have found against him on that point alone, but wanted an explanation of his use of the term.  It also referred to the fact that he had not mentioned in his first interview evidence which he later gave about the authorities targeting his family.

8. The Tribunal said that there were significant areas of the applicant's evidence that required testing.  The Tribunal was not satisfied, on the evidence, that the applicant had a well-founded fear of persecution under the Convention.  It was not satisfied that he left Syria to escape persecution and it was not satisfied that he left Syria illegally.  Even if he had, the Tribunal felt he would not face persecution but be punished under a law of general application if he were returned to Syria.  The Tribunal did not consider the applicant to have a profile of any particular concern to the Syrian authorities and on that basis it was not satisfied that his departure from Syria would be treated as an act of political opposition to the Syrian government.  The Tribunal referred to the general position in Syria with the provision of services by UNRWA.  It concluded in the end that the applicant was not a person to whom Australia has obligations under the Refugees Convention. 

9. The applicant prepared a statement which he read in Court about the Tribunal's decision.  He went point by point through the findings of the Tribunal against him as he saw them.  However, in doing so he was inviting the Court to make different findings on the facts from those made by the Tribunal.  As I explained to him, the Court does not have that power.  He had declined to give evidence to the Tribunal because he thought the particular Tribunal member had never given a protection visa to any person who appeared before her.  He also claimed that the Tribunal member took seven or eight months to give decisions.  I do not know whether those things are right or not, but even if they were right, they are not grounds upon which I can interfere with the Tribunal's decision.  The application must be dismissed with costs.

I certify that the preceding nine (9) 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 AA Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 October 2001
Date of Judgment:	16 October 2001