Zair, Malek v Minister for Immigration and Multicultural Affairs

[1998] FCA 1673

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1144  of  1998

BETWEEN:	MALEK ZAIR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	3 DECEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1144  of  1998

BETWEEN:	MALEK ZAIR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	3 DECEMBER 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   I have before me an application for an order of review in respect of a decision of the Refugee Review Tribunal given on 6 October 1998.  Malek Zair (“the Applicant”) is a citizen of Syria who arrived in Australia on 27 September 1995.  On 17 August 1998, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 31 August 1998, a delegate of the Minister refused to grant a protection visa and on 4 September 1998 the Applicant sought review of that decision.  The decision of the tribunal was to affirm the decision of the delegate not to grant a protection visa and the application is for a review of that decision of the tribunal.

The Applicant claims to be a refugee within the meaning of Article 1A(2) of the Convention relating to the status of Refugees.  A refugee is defined as a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country.  The Applicant claimed that he feared to return to Syria because he was at risk of a revenge attack by a large clan.  He claimed that members of that clan had killed his brother following a dispute between his family and that clan.

The Applicant said that his brother had entered into a relationship with a young woman in the 1970s.  His brother had then decided not to marry the woman.  Through that relationship and the refusal to marry the young woman, his brother had brought dishonour on the woman’s family.  When the relationship was discovered the consequences could have been serious for the young woman as custom demanded that she be killed.

However, the Applicant’s father decided to intercede and entered into an agreement with the woman’s family that the Applicant, who was 17 at the time, would marry the woman when he was of an age to marry.  The Applicant was unaware of the arrangement and served his military service until 1984.  When he left the military, his father told him of the agreement he had made with the other family.  The Applicant said that he was upset and said that no one should be asked to marry a woman who had been in a relationship with another man even though the man was his brother.  He therefore refused to marry the woman.

Following that, there were a number of threatening notes sent to the Applicant which indicated that the woman’s family knew his movements and were in a position to cause him harm.  The Applicant acknowledged that both families were of the Sunni sect and, apart from the problem created when his brother entered the relationship with the woman, there was no problem between the two families.  The Applicant said that a man from the other family killed his brother in consequence of the circumstances which I briefly described and a youth from that family also shot the Applicant.

The man who killed the Applicant’s brother was prosecuted and sentenced to 12 years imprisonment.  He was released in 1990.  The youth who shot at the Applicant was sentenced to four years imprisonment, his youthful age having been taken into account.  The youth was released in 1991.  The Tribunal accepted the Applicant’s account as consistent and plausible.  However, the Tribunal rejected the Applicant’s claim that he was entitled to protection as a refugee.

The Applicant's claim was put on the basis that he was a member of a particular social group and that he had a well founded fear of being persecuted for that reason.  The Tribunal found that although the Applicant's family may well constitute a particular social group, the Applicant's membership of that group would not, of itself, be enough.  The Tribunal was of the view that it would be necessary to find that any harm feared was because of membership of the particular social group.

The Tribunal, however, considered that the Applicant's account of the circumstances made it clear that the harm he feared was not because of his membership of the family but because of what his brother had done and what his father did to try to rectify the problem.  The Applicant acknowledged that, but for his brother’s actions, there would have been no problem between the two families.  That being the case, any fear of harm which the Applicant may hold, is not for a Convention reason.  Rather, the harm which he fears is the consequence of his brother's conduct and his refusal to accept what his father had committed him to do.  I consider that there was no error in the conclusion of the Tribunal in that regard.

The grounds specified in the application make no attempt to fit themselves within section 476.  Putting that aside, however, there appears to me to be no error in concluding that the reason for harm is because of the particular circumstances of the case. There was no finding and no basis for finding on the material which has been produced to this Court, that the Applicant would be subjected to any harm by reason of his membership of his family.  There is no suggestion that other members of his family would be at risk or are at risk in any way.  It is, of course, unfortunate for the Applicant that his father committed him to the action which he did.  Be that as it may, that is simply not a circumstance which constitutes the possible harm which he fears as being for reason of his membership of a particular social group.

It is clear that the perpetrators of the harm to the Applicant’s brother and to himself have been punished according to the law of Syria.  The Applicant’s concern is that the members of the other family may ignore the law and, at risk of further prosecution or punishment, endeavour to cause him harm.  Even if there were a finding that any possible persecution of the Applicant is by reason of his membership of a particular social group, there must also be a requirement that he is unable or unwilling, because of his fear of persecution, to avail himself of the protection of Syria.  In the circumstances, the authorities in Syria are prepared to afford such protection as the law permits.  There is no obligation on Australia to ensure that unlawful conduct does not occur unless, perhaps, in circumstances where that conduct is encouraged by the authorities or the authorities are simply not in a position to prevent it.

There is no evidence that the rule of law in Syria is such that there is a real risk that unlawful conduct could harm the Applicant.  In the circumstances, I consider that the second basis upon which the Tribunal based its decision had some substance and that there would be not ground of review by reason of that finding.  In my opinion, the application should be dismissed.

I order the Applicant to pay the Respondent's costs of the application.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            3 December 1998

Solicitor for the Applicant:	West Side Lawyers
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 December 1998
Date of Judgment:	3 December 1998