W362 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1618

FEDERAL COURT OF AUSTRALIA

W362 v Minister for Immigration & Multicultural Affairs [2001] FCA 1618

MIGRATION - refugee - stateless Palestinian - alleged persecution by Syrian intelligence - copying of allegedly political tapes for distribution - applicant's claims not accepted by Tribunal  - application dismissed - no question of principle

W362 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W362 OF 2001

FRENCH J
7 NOVEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W362 OF 2001

BETWEEN:	W362 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	7 NOVEMBER 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	W362 OF 2001

BETWEEN:	W362 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

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

REASONS FOR JUDGMENT

1. The applicant is a stateless Palestinian who came to Australia in June 2000 from Syria without a visa.  He was interviewed by an officer of the Department of Immigration and Multicultural Affairs ("DIMA") shortly after his arrival on 27 June 2000.  On 20 March 2001, he lodged an application for a protection visa.  He was helped by solicitors and an Arabic interpreter.  He lodged a statutory declaration in support of the application. On 23 March 2001, the applicant was interviewed by an officer of DIMA.  On 2 May 2001, his application for a protection visa was refused by a delegate of the Minister for Immigration and Multicultural Affairs.  He sought review of that application before the Tribunal on 4 May.  The Tribunal application was heard on 18 June.  A written submission was sent to the Tribunal by the applicant's migration agents. 

2. On 30 July, the Tribunal wrote to the applicant's solicitors drawing attention to matters which might form reason for refusal of his application.  A separate letter was sent to the applicant.  In that letter it was pointed out that at his first interview he said he had left Syria on a genuine passport issued by the Syrian government.  In a written statement he later gave to DIMA he said he had left on a Spanish passport.  At the hearing before the Tribunal he said he had used both a Spanish and a Syrian passport.  The Tribunal asked him to explain why his evidence about his travel document had changed.  It pointed out that the differences in these stories could lead to him not being believed.

3. The solicitors wrote back to the Tribunal on 7 August 2001.  They said that at the initial interview the applicant did not say he had left Syria on a genuine Syrian passport.  The question at the initial interview was about the passport used for travel to Australia.  He was not asked at the initial interview which passport was used to leave Syria.  The solicitors also said that in the applicant's written statement it did not say he left on a Spanish passport.  It pointed out that the applicant's written statement said the smuggler used his travel document and a false Spanish passport.  At the DIMA interview he stated he also had a Spanish passport and also on the Form C he said he had a Spanish passport.  The solicitor submitted that the RRT should believe that he had used a Spanish passport to leave Syria.  The Tribunal decision was made the following day, on 8 August.

4. On 15 August, the applicant filed an application in this Court for judicial review of the Tribunal decision.  There were no grounds of the application set out in the form.  In his submission to the Court today, the applicant said that the Tribunal decision was unfair and oppressive.  He referred briefly to some aspects of the Tribunal's findings.  He also said that he had deserted from  military service and had secret information which he had said that he could make available.   This was not material which was before the Tribunal.  There is nothing in what the applicant has said to indicate any error of law or procedure on the part of the Tribunal.  I have myself considered the Tribunal's reasons for its decision.  I summarise those reasons as follows.

5. The applicant said that he ran a music recording shop in Syria.  In May 2000, contrary to Syrian law, he made multiple copies of a tape recording for an English teacher, without knowing what was being copied.  In Syria the law was that you could not record and distribute something without knowing what it was.  Anything suspect should be reported to the authorities.  He said initially the man had asked him to record a few tapes.  He listened to them and found they were in English and were for English lessons.  A short time later the man had come to him again and asked him to make 100 or 200 copies of a tape.  He said he had done this without listening to the master tapes first.  The second tape was not in English like the first, it was in Arabic.  Asked whether he should have taken precautions to ensure that his family shop was not going to be involved in something illegal, he said he had trusted his customer. 

6. On 23 May 2000, the applicant said he was contacted by a letter from the Mukhabarat.  He said he was ordered to report to a regional intelligence officer the next day.  He went to the office with a family friend whose wife was a captain in intelligence.  He was interrogated.  He was asked about his business contacts and whether he knew a man called Diyab.  He said he didn't know this man.  He was then beaten up and taken to a cell.  There he saw the man who had claimed to be an English teacher and was told that this was Diyab.  He was accused of being Diyab's collaborator.  He was told that the tape contained a speech by Rifaat al Assad.  He was also accused of being involved in the Al Ishtiraky party headed by Duraid al-Assad.  He denied this.

7. The applicant said that his identification documents were confiscated.  For the next month he was allowed to go home every night but had to spend every day at the intelligence office.  At the end of the month the Mukhabarat searched and ransacked his shop and they confiscated and destroyed a lot of his property.  The next day when he had reported to the intelligence office he had been asked whether he knew a man named Al Naqeeb.  This person was his aunt's brother-in-law.  He is the brother-in-law of his aunt and was under investigation for being involved in the Al Ishtiraky Party.  He then said he was detained until 19 July and not allowed to go home at night.  On 19 July, the applicant had begged to be allowed to go home for the night.  He said when he had been set free, he had not gone home but went to his shop and then spent the night at a people smuggler's house.  He said that on 20 July he had left Syria.  The people smuggler had given him a false Spanish passport and had arranged for him to get past immigration and customs at Damascus Airport. 

8. The applicant told the Tribunal that if returned to Syria he would be executed because he had not returned to the intelligence office, he had left the country illegally and he was suspected of being involved with the Al Ishtiraky Party.  He also told the Tribunal, when questioned by it, that he faced persecution for political reasons.  He said this was because he had confessed to being involved with Rifaat al Assad and the Al Ishtiraky Party.  He said he had also confessed to being involved in making and distributing tapes and pamphlets against the government.  The Tribunal put to him that this was a new story.  The applicant said he had told this story before but in his statement he said that he told the intelligence people there was nothing to confess.  He had also said in his statement that he had nothing to do with the Al Ishtiraky Party. The applicant told the Tribunal that he had confessed about a month after his detention, having been forced into it through beatings and torture.  The applicant also told the Tribunal that after coming to Australia he heard his brother had been detained and his family harassed.

9. The Tribunal referred to general information about the situation in Syria from the applicant's advisers.  The Tribunal then went on to consider its findings and conclusions.  It accepted that the applicant was a stateless Palestinian born and resident in Syria.  It also accepted that he was registered with the United Nations Relief and Works Agency.  Apart from that, however, the Tribunal said the remainder of his evidence overwhelmingly lacked credibility.  It was not satisfied that his claim of having accidentally recorded 100 to 200 politically sensitive tapes was credible.  This was not credible having regard to the security environment in Syria and the details of his evidence.  He had lived all his life in Syria, he would know what a security conscious country it was.  He would also know the limits of politically safe activity.  The Syrian government has an elaborate network of security agencies.  The Tribunal was confident that the applicant was neither a foolish nor a naïve person.  The Tribunal found it very difficult to believe that the applicant would have casually recorded 100 to 200 tapes of something he had not listened to properly himself for a person he hardly knew.   As the owner of the music shop he would have been careful not to break the law about copying and selling untested material.  That could have led to penalty and damage to his business.  It could have led to him being gaoled or worse happening to him for political reasons.

10. The Tribunal was also not satisfied that Syrian authorities would have considered the applicant to be a political activist.  He was not able to clearly identify the party from among several parties in Syria having the word "Ishtiraky" somewhere in their titles.  None of these parties is led by Rifaat al Assad or his sons.  The Tribunal also found that the applicant's credibility was undermined by the change in his story about confessing to political involvement.  The Tribunal also found that there were details about the detention story which lacked credibility.  The Tribunal found it unlikely or unbelievable that he would have been allowed night release.  It did not believe that the Syrians would have delayed for a month to search and ransack his business premises.  It did not believe that the Syrian authorities would confiscate his identity documents but leave his passport in the hands of a family friend.

11. The Tribunal found that the applicant's claims about his departure from Syria lacked credibility, particularly his story about the use of a Syrian and a Spanish passport.  The Tribunal considered whether he would be put at risk if returned to Syria by the way in which he left.  The Tribunal was not persuaded that the applicant left Syria because of a fear of persecution and it was not satisfied that he left Syria illegally.  It considered that he left normally and openly.  The Tribunal accepted that he might have used a people smuggler to get to Australia.  It accepted that he might of disposed of or hidden his passport before arriving here but the Tribunal found he could return to Syria once his identity and his UNRWA registration were confirmed by the Syrian authorities.

12. The Tribunal also considered whether the fact that he was a Palestinian could be a cause of persecution if he returned to Syria.  It, however, rejected that claim.  It said that the range of independent evidence to which it referred did not demonstrate that he would face persecution simply on account of his race.  The Tribunal did not make any finding about whether or not he was excluded from the operation of the Convention by Article 1(D) which relates to Palestinian refugees.

13. Although the Tribunal findings are expressed in terms of the plausibility of the applicant's story and its lack of satisfaction of the truth of that story, it has plainly comprehensively rejected it.  There is no room on the Tribunal's findings for a finding that there was a real chance of persecution if he were returned to Syria.  I can find no error in the Tribunal's approach to this decision.  In the circumstances, the application must be dismissed.   There will be an order that the applicant pay the respondent's costs of the application.

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:               November 2001

The applicant appeared in person
Counsel for the Respondent:	Mr MT Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 November 2001
Date of Judgment:	7 November 2001