Moussa v Minister for Immigration & Multicultural Affairs [1999] FCA 134 (11 February 1999)

Last Updated: 24 February 1999

CATEGORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Moussa v Minister for Immigration & Multicultural Affairs [1999] FCA 134

HABIB MOUSSA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 542 of 1998

DOWSETT J

11 FEBRUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 542 OF 1998

BETWEEN:	HABIB MOUSSA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	DOWSETT J
DATE OF ORDER:	11 FEBRUARY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is refused.

2. The applicant pay the respondent's costs of the proceedings, including 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 542 OF 1998

BETWEEN:	HABIB MOUSSA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	DOWSETT J
DATE:	11 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a Lebanese national who arrived in Australia on 7 November 1996 directly from Lebanon. He has remained here since that time. On 6 January 1997 he applied for a protection visa. This was refused. An application was made for review in the Refugee Review Tribunal. This was also unsuccessful. The applicant now seeks to proceed pursuant to s 476 of the Migration Act 1958 (Cth) for a review of the decision of the Tribunal.

2 It is not immediately clear on which of the grounds specified in s 476 the applicant relies. Counsel for the respondent has suggested that perhaps the only way in which his complaints can be characterised is to assume that he is relying upon the obligation to act according to substantial justice and the merits of the case imposed by s 420 and to infer that such requirement is reflected in one or other of the sub-paragraphs of s 476(1), perhaps either par (a) or par (e).

3 The applicant seeks what is known as a protection visa. To do so he must establish that he is a refugee within the meaning of the relevant convention. This provides that a person shall have such status if:

... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion (he) 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 ...

4 The applicant's case is that he has a well-founded fear of persecution for reasons of political opinion, or at least that appears to be the only limb of the Convention definition which might arguably have any application to his case. The facts which are said to give rise to such status are that during the troubles in the Lebanon after 1980, he was actively engaged in an organisation known as the Lebanese Forces, which appears to have been a rather amorphous body founded as the military wing of a political party, the Phalangists. In 1991, however, the Lebanese Forces were disbanded and became a political party rivalling the Phalange. The party was subsequently banned by the government following a history of violence.

5 In the tribunal, the applicant was treated as having been a member of the Lebanese Forces. However, before me, he denied that he had ever been a member, saying rather that his association had been, as I understood him, through his wife who was related to one of the senior officials of the LF. As a result of that association, the applicant had, over an extended period of time from 1980 until the early 1990s, acted as a courier, carrying documents between senior members of the LF. For present purposes I accept that this was so.

6 His concern, as he has put it to me, is that because of his involvement as a courier with sensitive documents involving sensitive information, the Lebanese government or the Syrian forces might well be interested in punishing him for his role in the hostilities. The Syrian government and its forces apparently still have a very great influence upon the affairs of the Lebanon and a significant presence within its borders.

7 The applicant does not claim that he was discriminated against or mistreated prior to his departure from the Lebanon in 1996. He says that this was because he moved from Beirut to a more isolated area. The tribunal noted that the applicant had been allowed to leave the Lebanon and inferred from this that he was not a person of great interest to the authorities. The applicant suggests that bribery or some other form of corruption may have assisted in this regard.

8 I have some difficulty in applying the words of the Convention to this claim. Even accepting that the Lebanese Forces now constitute a political party, albeit one which is illegal, the applicant does not claim to be a member of that party. Thus I find it difficult to see how it can be said that he fears persecution because of his political opinions. His fear appears rather to be grounded in a fear of punishment for past conduct, not necessarily misconduct, but conduct contrary to the interests of the Lebanese government or the Syrian government.

9 It may be possible to stretch the wording of the Convention to include this situation, but I have some difficulty in doing so. In any event, it is difficult to see how it can be said that he has a well-founded fear, given the large quantity of information referred to by the tribunal which appears to indicate that only people who continue to be politically active or who were operating at a very senior level in the LF are likely to be exposed to persecution. The applicant asserts that he comes into this category for reasons peculiar to himself, namely his familial association with senior members of the organisation and his involvement as a courier. That is a rational argument, but given that he was not interfered with between the end of hostilities and his departure in 1996, and giving at least some weight to the fact that he was able to get out of the country on a valid Lebanese passport, it is difficult to infer that his present fears can be said to be well-founded.

10 He complains specifically that the tribunal's decision was based upon generalised information made available to it and that it failed to give appropriate weight to his special circumstances, or at least that is what I understand to be the case he is advancing. I do not accept either criticism. It seems to me that the tribunal gave weight to his involvement with the Lebanese Forces and otherwise acted upon material upon which it was entitled to act. I can see no basis for alleging that there has been any failure to comply with the procedural requirements of s 420, nor can I see any basis for reviewing the decision pursuant to s 476. The decision I make is based upon the assumption that his fears, if well-founded, would have justified his being classified as a refugee although, as I have said, I am not satisfied that such is the case.

11 The application is refused.

12 I order the applicant to pay the respondent's costs of the proceedings, including reserved costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 11 February 1999

The Applicant appeared in Person.
Counsel for the Respondent:	Ms F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 February 1999
Date of Judgment:	11 February 1999