Qubaiaa v Minister for Immigration and Multicultural Affairs [2002] FCAFC 52; [2002] FCA 227 (8 March 2002)

Last Updated: 8 May 2002

Qubaiaa v Minister for Immigration and Multicultural Affairs [2002] FCAFC 52

Qubaiaa v Minister for Immigration and Multicultural Affairs [2002] FCA 227

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Qubaiaa v Minister for Immigration and Multicultural Affairs [2002] FCA 227

MOHAMMAD QUBAIAA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 406 OF 2001

HEEREY, MARSHALL AND DOWSETT JJ

PERTH

8 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 406 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MOHAMMAD QUBAIAA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	HEEREY, MARSHALL AND DOWSETT JJ
DATE OF ORDER:	8 MARCH 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

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 406 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MOHAMMAD QUBAIAA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	HEEREY, MARSHALL AND DOWSETT JJ
DATE OF ORDER:	8 MARCH 2002
WHERE MADE:	PERTH

REASONS FOR JUDGMENT

THE COURT

1 On 10 August 2001 Hely J dismissed an application by the appellant to review a decision of the Refugee Review Tribunal ("the RRT") that the appellant was not entitled to a protection visa.

2 The appellant entered Australia on 22 December 2000. He had resided in Syria since 1982. He is a stateless person of Palestinian ethnicity. Before the RRT the appellant claimed that he escaped illegally from Syria after he was arrested, beaten and tortured by the intelligence service who suspected him of being a member of the Al-Tahrir Party.

3 The RRT disbelieved the appellant's claims. It found that the appellant would be of no interest to the Syrian authorities if returned to Syria. It also did not accept that the appellant departed Syria illegally. The RRT noted that the appellant was in possession of a Palestinian travel document when he left Syria with a visa to enter Indonesia.

4 The only ground of review pursued by pro bono senior counsel on the appellant's behalf before Hely J was that the RRT erred in law by failing to address what might happen to an unregistered Palestinian who is returned to Syria.

5 It is not surprising that this ground of review did not succeed before Hely J, given that the RRT observed at p.15 of its reasons for decision that it had considered the appellant's claim that he was unregistered together with "other facts" when determining whether the appellant would be able to return to Syria. The lack of registration arose from the fact that the appellant was born in Libya. His parents and two of his sisters were registered with the appropriate United Nations agency as Palestinians living in Syria.

6 Hely J noted that the RRT had found that for the purpose of obtaining travel documents the appellant had appropriate registration. The RRT also noted at p.16 of its reasons for decision that it had not found that the appellant had suffered "any significant detriment or disadvantage by having been born in Libya". Further the RRT was satisfied that the appellant had sufficient links with Syria to enable him to return there.

7 Hely J observed at [14] that:

"(the) RRT's decision proceeds upon the basis that Syria will re-admit the applicant. RRT did not address and was not required to address, what might happen to a person who was an unregistered Palestinian returning to Syria if only because the Tribunal found that he was registered. The issue of whether the applicant would be permitted to return to Syria safely arose originally in association with his claim that he had been arrested for political reasons and that he left Syria illegally. As already indicated, those claims failed. If RRT is wrong in its assessment that the applicant will be permitted to return to Syria, then it may be that the applicant's future will be uncertain. If he is not permitted to enter Syria, he might be returned to Australia until Australia is able to find some other country prepared to take him. But Mr Barker QC frankly accepted that he could not establish that any difficulties which the future might hold for the applicant in that respect are within the terms of the Convention. That being so, the fact (if it is a fact) that the applicant faces an uncertain future in terms of his re-admission to Syria does not give rise to a well-founded fear of persecution for a Convention reason, given RRT's rejection of the applicant's claims."

8 We respectfully agree with those conclusions of his Honour. Nothing was advanced before us on appeal which would lead to a contrary view being accepted. The matters raised by the appellant on the appeal all went to the merits of his case for a protection visa, rather than to disclosing error in the reasoning of Hely J. In our view the appeal should be dismissed. We see no reason why costs should not follow the event.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Marshall and Dowsett.

Associate:

Dated: 8 March 2002

The appellant appeared in person.
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 March 2002
Date of Judgment:	8 March 2002