W36/2001 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1115

FEDERAL COURT OF AUSTRALIA

W36/2001 v Minister for Immigration & Multicultural Affairs [2001] FCA 1115

W36/2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 36 OF 2001

HELY J
9 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 36 OF 2001

BETWEEN:	W36/2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	9 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant should be referred to only as W36/2001.

2.The application should be dismissed with 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	W 36 OF 2001

BETWEEN:	W36/2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	9 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under Part 8 of the Migration Act 1958 (Cth) (“the Act”) seeking review of a decision of the Refugee Review Tribunal (“RRT”) given on 16 January 2001. By that decision RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant.

2. The applicant arrived in Australia on 9 September 2000.  He is a stateless Palestinian who has lived all of his life in Syria.  He claimed a well‑founded fear of persecution if returned to Syria, his country of habitual residence, on the ground of his political opinion and his religious affiliation.  The applicant claimed that he was detained and tortured for political reasons and treated more harshly whilst in detention because he was a Sunni Muslim.  He said that he left Syria illegally.

3. RRT did not accept any of the applicant's claims.  In particular it did not accept that the applicant left Syria illegally.  RRT found that the applicant left Syria legally on a genuine travel document without experiencing any problems.  As a Palestinian registered with UNWRA, the applicant has the right to reside in Syria indefinitely with most of the rights of a Syrian national, including the right to travel abroad and to return to Syria.

4. Review of RRT's decision is sought on the ground that:

   -RRT's reasons for decision do not contain any reference to the question of how the applicant might be treated on his return to Syria:

   (a)having been absent from Syria since 29 August 2000;

   (b)having applied for refugee status; and

   (c)as a stateless person without papers other than a copy of a student identification card.

5. These matters are said to be relevant to the question of whether there is a real chance that the applicant would be persecuted if returned to Syria and the failure to make findings as to those matters is said to constitute jurisdictional error.  The grounds of review do not challenge any of the findings of RRT.  They seek to raise fresh matters.

6. There was no evidence or other material before RRT that the applicant had any concerns, much less a well‑founded fear of persecution, arising from all or any of the matters now relied upon; nor is this a case in which RRT could make findings to that effect absent such material.  In those circumstances, no reviewable error is established by reason of the fact that RRT did not address or make findings on those matters.

7. The application for a protection visa included a statement that the travel document issued by the Syrian government was lost on the way to Australia.  The applicant claimed that he threw it into the sea on the way because the smugglers told him to do so.  Mr Hawkins, who appeared for the applicant, submitted that there was a duty on RRT to make further inquiries and to investigate for itself whether the absence of travel documents would be the source of a problem in the future.  No authority was cited in support of that proposition and my recollection of the current trend of authority is that it denies the existence of any such duty on the part of the tribunal.  For those reasons, the application for review should be dismissed.

8. The applicant should be referred to only as W36/2001.

9. The application should 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 Hely.

Associate:

Dated:             15 August 2001

Counsel for the Applicant:	Mr M J Hawkins
Counsel for the Respondent:	Mr L A Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 August 2001
Date of Judgment:	9 August 2001