Adnane Ahouidak v Minister for Immigration & Multicultural Affairs [1997] FCA 1519 (4 September 1997)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 951 of 1996

BETWEEN:	ADNANE AHOUIDAK Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MOORE J
DATE OF ORDER:	4 SEPTEMBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application to adjourn the proceedings is dismissed.

2. The application for review is dismissed.

3. The applicant pay the respondent's costs including any reserved 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 951 of 1996

BETWEEN:	ADNANE AHOUIDAK Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE J
DATE:	4 SEPTEMBER 1997
PLACE:	SYDNEY

INTERLOCUTORY REASONS FOR JUDGMENT

(Delivered ex tempore)

An application has been made to adjourn this matter which was fixed for hearing when it was last before me on 4 August 1997. The matter had been set down for hearing on that day. An application was then made by Mr Sarroff that the hearing date be vacated. That application was based on both the personal circumstances of Mr Sarroff, who had been ill for some time prior to that hearing date and the circumstances of his client who also had been ill. I granted the adjournment. However I made it plain that I expected the matter to proceed to trial on the date set, 4 September 1997, and that the procedural steps that I then directed take place, would in fact be undertaken..

In the event, the steps ordered to be undertaken were not undertaken and it would appear, at least on one view, the matter is not in a position to be heard today. If so, that appears to be entirely attributable to the applicant. The reason advanced for the adjournment today is the health of the applicant. Mr Sarroff has tendered a medical certificate of a Dr JM Sachar dated yesterday. It records that the applicant is suffering from a heart condition and the doctor has expressed the view: "I feel that the stress caused by a court appearance may initiate something more serious." Reliance is also placed on the medical certificate tendered on the last occasion of Dr Pitney.

The proceedings themselves involve the judicial review of a decision made under the Migration Act 1958 ("the Act"). While, in the ordinary course, the court should strive to ensure that an applicant is able to hear personally any case put on his or her behalf and any arguments and submission put against that case, the history of this matter would suggest to me that the inability of the applicant to attend today is an insufficient reason to adjourn the matter yet again and to vacate, yet again, a hearing date fixed for the hearing of the matter. In those circumstances I do not propose to accede to the request that the matter be adjourned and the hearing of the matter will proceed.

REASONS FOR JUDGMENT

(Delivered ex tempore)

This is an application for a review of the Refugee Review Tribunal ("the Tribunal") of 1 November 1996. The Tribunal found that the applicant was not a refugee and was not entitled to protection as a refugee under the Migration Act ("the Act") 1958. The Tribunal also affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a protection visa. The facts by reference to which the decision were made were summarised by the Tribunal at page five in its reasons for decision. There the personal circumstances of the applicant are set out and I quote:

"The applicant was born in Casablanca, Morocco in 1960. He is of Afro-Arabic ethnic origin and he is a Muslim. His parents and five siblings live in Morocco. He lives in Casablanca and attended university from 1985 to 1986. He travelled to France in November 1987 and remained in France until January 1988. He travelled to England where he stayed one month. He applied in England to the Australian authorities for a visitor's visa to enter Australia. He arrived in Australia on 12 February 1988. After arriving in Australia the applicant registered his presence with the Moroccan authorities in Sydney. He was granted an extension of his passport in July 1992 by the Moroccan authorities in Tokyo and the passport is valid to May 1997."

An additional relevant fact was that the applicant was granted a passport in 1987 before travelling from Morocco. Various findings of fact were made by the Tribunal, including a finding which appears at page nine of its reasons, that the applicant is unwilling to return to Morocco.

It is not entirely clear by reference to which provision of the Act this review is sought. However, the only matter which, in my opinion, might be thought to be material which is raised by Mr Sarroff concerns the approach taken by the Tribunal to the issue to the applicant of a passport in 1987 and its renewal in 1992.

In its reasons the Tribunal sets out material concerning the circumstances in which passports might or might not be issued to Moroccan citizens. It points to circumstances where the Kingdom of Morocco would refrain from issuing passports to citizens of Morocco who might be under the attention of local authorities having regard to the political activities of those citizens. The ultimate finding of the Tribunal appears at page 12; namely, that the issue of a passport to the applicant in 1987, his legal departure from Morocco and the subsequent extension of his passport by Moroccan officials indicate that the applicant is not the target of persecution for his political opinions.

That finding founded a finding that the applicant does not have a well founded fear of Convention related persecution if he was to return to Morocco, the country of his nationality. Of some significance is that the Tribunal does not repeat in the section which appears to found its conclusion, what appears to be an earlier finding, that the applicant does not fear persecution. The ultimate finding of the Tribunal turns on whether there existed a well founded fear.

In my view, having regard to the material by reference to which the Tribunal formed that ultimate conclusion, it was a conclusion open to it. Although I earlier indicated the precise basis upon which the review was sought was not made clear, I am not satisfied, having regard to what was put on behalf of the applicant, that any reviewable error is manifest in the decision of the Tribunal. Accordingly, I propose to order that the application be dismissed.

I order that the applicant pay the respondents costs including any reserved costs. By that last remark I intend to comprehend the costs flowing from the vacation of the hearing date on the last occasion amongst other reserved costs.

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

Associate:

Dated: 4 September 1997

APPEARANCES

Solicitor for the Applicant:	Mr Sarroff of Sarroff & Co
Counsel for the Respondent:	Mr R T Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 September 1997
Date of Judgment:	4 September 1997