Kassouaa v Minister for Immigration & Multicultural Affairs [1999] FCA 126 (4 February 1999)

Last Updated: 24 February 1999

CATEGORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Kassouaa v Minister for Immigration & Multicultural Affairs [1999] FCA 126

KHALDOUN KASSOUAA v MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

NG 1079 of 1998

LINDGREN J

4 FEBRUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1079 OF 1998

BETWEEN:	KHALDOUN KASSOUAA Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	LINDGREN J
DATE:	4 FEBRUARY 1999
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. 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 1079 OF 1998

BETWEEN:	KHALDOUN KASSOUAA Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	LINDGREN J
DATE:	4 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(ex tempore)

INTRODUCTION

1 The applicant applies under s 476 (1) of the Migration Act 1958 ("the Act") for a review of a decision of the Refugee Review Tribunal ("RRT") dated 15 September 1998, affirming a decision of a delegate of the respondent ("the Minister"), not to grant him a protection visa. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). Article 1A (2) of the Convention provides that a refugee is any 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

2 The applicant's case is that he is outside the country of his nationality, Syria, and is unwilling to return to it because of a well-founded fear of being persecuted there for reasons of actual or imputed political opinion.

PROCEDURAL BACKGROUND

3 The applicant arrived in Australia on 27 May 1996. On 18 April 1997, he applied for a protection visa (visa subclass 866). A delegate of the Minister refused the application on 7 July 1997. On 8 August 1997, the applicant applied to the RRT for a review of that decision. The RRT conducted a hearing on 15 July 1998. As noted above, on 15 September 1998 the RRT affirmed the delegate's decision. The applicant filed his present application on 12 October 1998.

THE DECISION OF THE RRT

4 The RRT commenced its reasons for decision by referring to the procedural background, the applicable legislation and the law relating to the Convention definition of a "refugee". It then considered the applicant's "Claims and Evidence" which were set out in his Protection Visa application, written submissions to the Department, written submissions to the RRT and oral evidence given by the applicant and his wife at the RRT hearing on 15 July 1998.

5 The applicant claimed that he was born and educated in Suwayda in Syria. His maternal uncle was a member of the Syrian Communist Party. While his uncle was never arrested and detained because of his membership of that Party, pressure was put on him "in other ways". The applicant also claimed that he himself joined the Communist Party when he was fourteen years old and supported the leadership of Yusuf Faysal (the Syrian Communist Party split into two groups while the applicant was at school). He said that he organised a group of students with similar political beliefs while at school but discontinued his political activities in his last year of school when a teacher began to question him about his beliefs and associates and sought to persuade him to join the governing Ba'ath Party.

6 The applicant said that after this time he was not questioned about his political activities or beliefs until his military service, but that when he applied to study engineering at Damascus University he was passed over in favour of people with lower marks who were Ba'ath Party members. He moved to Beirut where he believed he would be accepted at the university if he could pay the fees. He worked in a library/bookshop in Beirut but could not raise the necessary money. As he could no longer put off his military service, he returned to Suwayda.

7 The applicant's military service began in 1991 and continued for two years and seven months. It was not until late 1992, some seven months before the end of his service, when the applicant went home on leave, that he was first questioned by the Syrian Military Intelligence. The questioning was about his political affiliations. The applicant did not tell his questioners about his background in the Communist Party.

8 Again, about four months before the end of his service, the applicant went home on leave to find that his home had been searched. He was approached by two Syrian Intelligence officers who offered him money and good treatment for the rest of his military service in return for information about his uncle and his Communist associates. The applicant co-operated because he was afraid of what might happen to him if he did not. He signed a Ba'ath Party membership form which was given to him by the Intelligence officers.

9 Some two months later, the applicant was ordered to go to the Military Intelligence Office. The officers there said that since he was now a member of the Ba'ath Party he should work for them. He requested time to consider their offer.

10 A month later, the applicant finished his military service. He went home, and after about five days, he was again ordered to go to the Military Intelligence Office, where he was offered money if he would supply information. The applicant was afraid and did not know what to do. He sent a letter advising that he was following a person in order to obtain information. However, the Intelligence officers were not satisfied and gave him five days to obtain information about five particular people. Two of these were Communists in the applicant's village and the others were Communists from another place.

11 The applicant decided to go into hiding. He travelled first to Damascus, and then, in July 1993, on to Beirut, where he again began working at the library/bookshop. About five days after he left for Beirut, Intelligence officers came to his parents' house looking for him. They were suspicious that he had left the Suwayda district at about the same time as a number of other people had done.

12 While the applicant was in Beirut he continued to read the Syrian Communist Party's newspaper and was interested in forming a group of Communist supporters. He also befriended a Syrian man who appeared to support the Communist Party. The applicant later discovered that this man was in fact a Syrian Intelligence officer. He decided to maintain the friendship, however, with a view to protecting himself in the future.

13 While he was working at the library/bookshop, members of the Syrian Intelligence approached him and asked him to provide information on people who came there to read. The applicant refused. However, over the next two years the officers continued to put pressure on him to provide them with information, and he would sometimes come home from work to find that his house had been searched.

14 In 1995, the applicant returned to Syria in order to obtain a passport. He hoped that the local Intelligence officers would have forgotten about him. However, he was summoned to their office where he was questioned. He decided to say whatever they wanted him to say in order to ensure that they did not prevent him obtaining a passport. He was apparently not detained. He then contacted his uncle in Australia who encouraged him to come to this country, but he was unable at first to get a visa.

15 After obtaining his Syrian passport, the applicant returned to Beirut in September 1995. The pressure on him from the Syrian Intelligence officers intensified and he found on three occasions that his apartment had been broken into. "Things would sometimes be stolen to make it appear as if the motive for the break-in was robbery". The applicant decided to confront his friend who was a member of the Syrian Intelligence and who, the applicant believed, was involved. He saw him in a restaurant and asked "What do you want from me?". The officer put his hand on his gun and said "I can get anything I want from you". The applicant took the officer's gun and left with it. The restaurant owner came after the applicant and told him to return the gun or he would find himself in trouble. The applicant gave the gun back, but knew that he had humiliated the Intelligence officer.

16 The applicant eventually quit his job because of the pressure that was being applied to him by the Syrian Intelligence. In April 1996, he obtained a visa to enter Australia and departed Syria for this country in May 1996. He said he feared he would be arrested and imprisoned if forced to return to Syria. When asked why he thought he had not previously been detained on account of his support of the Communist Party, the applicant said that he thought it was because he was perceived as being a source of information.

17 Asked why he had not mentioned his Communist affiliations until the RRT hearing, he said he had been nervous about disclosing his political activities and had expected to be interviewed and to have the opportunity at that time to explain his political opinions.

18 At the end of the hearing, the applicant's wife, an Australian citizen to whom the applicant was married in January 1997, was asked whether she wished to add anything. She said that she was extremely worried for her husband because his sister had called the applicant and told him she had heard his name on a radio program which gave the names of people who had left Syria and were wanted by the authorities. The applicant confirmed this evidence.

19 The RRT then referred to certain "independent information" about the situation in Syria and Lebanon which it saw as being relevant to the applicant's claims. In this context the RRT referred to the pervasive nature of the "Syrian Intelligence Services". It noted that "[d]iscrimination in favour of the Ba'ath Party members occurs in Syria"; that the Ba'ath Party's domination of the political system is guaranteed by the Constitution; that membership of that Party can confer advantages on people; that there was no suggestion in the information available to the RRT that non-membership of the Ba'ath Party carried penalties; and that the Syrian Communist Party is "technically illegal but is permitted to operate openly and has been represented in Cabinet since 1966".

20 Under the heading "Findings and Reasons", the RRT noted that it found the applicant to be a credible witness and proceeded to accept his claims. It accepted that he had suffered harassment in the past by reason of his political beliefs in the form of questioning by Intelligence officers and the searching of his home. However, the RRT noted that the applicant had not been detained for any length of time or physically mistreated. It was therefore not satisfied that he had suffered "persecution" for a Convention reason. It also noted that while the Communist Party is "technically illegal" in Syria, it had had representatives in that country's Parliament and even in its Cabinet for many years.

21 The RRT went on to consider whether the applicant would face persecution if returned to Syria. It considered that while he may face harassment similar to that which he had experienced in the past, there was nothing to suggest that he would face detention or physical mistreatment. The RRT considered that the radio announcement was simply designed to put people on notice that the Syrian authorities remained vigilant and were aware of what is going on. It therefore did not consider that the applicant would face "persecution" if he returned to Syria.

22 In relation to the incident in which the applicant took the gun from the Syrian Intelligence officer, the RRT considered that the chance of the applicant encountering this person in Syria was remote (it will be recalled that the officer was in Lebanon at the time of the incident) and said in any event that any retaliation would, in its view, "not be for political reasons, but for personal ones".

23 The RRT did not consider it plausible that the officer would be able to mobilise Syrian Intelligence generally against the applicant. In this regard, it noted that no attempt was made to prevent the applicant leaving Syria. The RRT was therefore not satisfied that there was a real chance that the applicant would be persecuted for a Convention reason if he returned to Syria.

GROUNDS OF REVIEW

24 By his application filed on 12 October 1998, the applicant relies on the grounds provided for in s 476 (1) (e) and (g) of the Act. Those grounds are as follows:

"(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision"

"(g) that there was no evidence or other material to justify the making of the decision"

Section 476 (4) qualifies s 476 (1) (g).

25 The applicant, who was not legally represented, set out in his application "particulars" of both grounds as follows:

"1. the persecution suffered and experienced by the applicant is for convention reasons.

2. the respondent recognised and accepted the harassment in the past and failed to accept that such harassment will reoccur should the applicant return to Lebanon or Syria.

3. the respondent found that the applicant is a credible witness and accepted the harassment he endured and failed to recognise him as a refugee.

4. the decision is manifestly unreasonable."

26 Of course, the reference in these particulars to "the respondent" should be to the RRT. The fourth particular, "manifest unreasonableness", is not a ground upon which an application for review of the RRT's decision may be made: see s 476 (2) (b) of the Act.

REASONING

27 On the hearing before me the applicant appeared in person accompanied by his wife. With the applicant's consent, his wife made certain submissions, both orally, and in writing, which the applicant adopted as his own.

28 I sought to emphasise that the Court's jurisdiction is limited to granting relief only on one or more of the grounds set out in s 476 (1) of the Act. I agree with Mr Peek solicitor, who appeared for the Minister, that it is not an easy matter to fit the particulars stated in the application with the grounds of review allowed under s 476 (1).

29 The fundamental criticism which the applicant seeks to make of the RRT's reasoning seems to be that the RRT misapplied the Convention definition of "refugee" by failing to find that the risk of harassment in the future, based on that which had occurred in the past, was sufficiently serious to satisfy the Convention definition; cf s 476 (1) (e) of the Act.

30 The RRT found the applicant to be a credible witness. It also accepted that he may have had some difficulty in attending the university of his choice because he was not a member of the Ba'ath Party; that he was subjected to harassment by the Syrian Intelligence during the period when he was in Beirut, mainly by searches of his apartment when he was not present; and that the incident concerning the snatching of the Syrian Intelligence officer's gun in the restaurant in Beirut had occurred. Further, the RRT gave the applicant the benefit of the doubt on the matter of the mentioning of his name on a "wanted" list.

31 However, the essence of the RRT's reasoning was that the kind of harassment which the applicant had suffered was no more than the kind of disadvantage commonly suffered by Syrian nationals who were not members of the Ba'ath Party, and did not rise to the "significant" level required, for example, by Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 where at 388, Mason CJ said that "persecution" required "some serious punishment or penalty or some significant detriment or disadvantage". Similarly, in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 142 ALR 331, Gummow J at 375, quoting the Oxford English Dictionary, referred to the primary meaning of the term "persecution" as:

"The action of persecuting or pursuing with enmity and malignity; esp. the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; ..."

32 In the present case the RRT did accept that there was a real chance that the applicant would, upon return to Syria, suffer the same kind and level of disadvantage that he had suffered in the past, but no greater disadvantage than that. I think that it was open to the RRT, as the relevant tribunal of fact, to reach that conclusion, and also to conclude that that kind and level of treatment does not match the level of seriousness required to constitute "persecution" and referred to in the passages which I have set out above.

33 No doubt a question of degree is involved. There might be a case where the RRT, because of its erroneous understanding of what the Convention definition required, committed the error referred to in s 476 (1) (e) by failing to recognise that the definition was satisfied by the facts which it accepted. But that is not this case. The present case is not one in which the applicant as a member of the Syrian Communist Party is pursued with enmity and malignity. The case is not one in which members of that Party suffer death, torture or penalties for membership of the Party or adherence to its views. The case is not one in which the harassment is directed to the repression or extirpation of the Syrian Communist Party. Rather, the facts suggest that the harassment is a general part of the State's control over its citizens, and a discrimination in favour of members of the Ba'ath Party, and against members of the Communist Party.

34 The RRT also gave particular reasons in relation to certain aspects of the applicant's claims. For example, it thought that if the Syrian Intelligence officer whose gun the applicant took in the restaurant in Beirut were to pursue the applicant upon his return to Syria, that would not be persecution, but personal animosity arising from the humiliation which the officer suffered at the hands of the applicant. I think this view was open to the RRT also.

35 I do not think that s 476 (1) (g) is satisfied either. There is clearly no scope for the application of that ground, as limited by s 476 (4), on the facts of the present case.

CONCLUSION

36 Neither ground of review is made out. The orders of the Court are that the application be dismissed and that the applicant pay the respondent's costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 4 February 1999

The Applicant appeared in person
Solicitor for the Respondent:	Mr G Peek of the Australian Government Solicitor's office
Date of hearing:	2 February 1999
Date of judgment:	4 February 1999