WABA v Minister for Immigration & Multicultural Affairs (includes corrigendum dated 31 January 2002) [2002] FCA 34 (17 January 2002)

Last Updated: 11 February 2002

FEDERAL COURT OF AUSTRALIA

WABA v Minister for Immigration & Multicultural Affairs [2002] FCA 34

WABA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W496 OF 2001

FRENCH J

17 JANUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W496 OF 2001

BETWEEN:	WABA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE: FRENCH J

DATE: 17 JANUARY 2002

PLACE: PERTH

Corrigendum

Amendment to the Ex tempore reasons for judgment delivered by French J on 17 January 2002:

In the Medium Neutral Citation delete "[2001]" and insert "[2002]".

Associate: 31 January 2002

Dated:

FEDERAL COURT OF AUSTRALIA

WABA v Minister for Immigration & Multicultural Affairs [2001] FCA 34

MIGRATION - judicial review - Refugee Review Tribunal - no reviewable error disclosed - application dismissed - no question of principle

WABA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W496 OF 2001

FRENCH J

17 JANUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W496 OF 2001

BETWEEN:	WABA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	17 JANUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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	W496 OF 2001

BETWEEN:	WABA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	17 JANUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The applicant is a stateless Palestinian who was born in Libya and lives in Syria. He is registered with the United Nations Relief and Works Agency. On 22 December 2000, he arrived in Australia by boat without any lawful authority. He lodged an application for a protection visa on or about 8 January 2001. That application was refused by a delegate of the Minister on 26 June 2001. He applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision on 2 July 2000. On 11 October 2001, the Tribunal affirmed the decision not to grant him a protection visa. On 17 October 2001, he lodged an application in this Court for an order for review of the Tribunal's decision.

2 The Court's jurisdiction to review decisions of the Tribunal is now limited to jurisdiction under s 39B of the Judiciary Act since 2 October. However, I am prepared to assume that the applicant's application is an application brought under s 39B of that Act and that it seeks to invoke the proper jurisdiction of this Court.

3 The Tribunal in its reasons for decision accepted the applicant was a stateless Palestinian born in Libya and residing in Syria and registered with UNRWA. The Tribunal also accepted that even thought he applicant was eligible for UNRWA assistance in Syria, it did not mean he would be protected from persecution in that country. The Tribunal therefore considered the applicant's claims on the basis of fear of persecution in Syria as his country of former habitual residence.

4 The applicant had claimed that he was detained by Syrian authorities because of the demand by an adjoining landowner that his family's poultry farm should be closed. This demand was evidently made on the basis that the smell of chickens in the area affected the neighbour's new large house. The applicant said that he had had an argument with the neighbour and that the day after he was stopped by a car and five armed men who had kalashnikovs. He told the Tribunal that they looked like security agents and he claimed they said they were from "Security". He claimed that he was detained for about two months. He spent nine days alone in a tiny cell where he was beaten and kept in terrible conditions. He was held in another cell for ten days and interrogated and tortured every day. A warrant for his arrest was then issued and he was then detained for a further month and hit from time to time until his release. He claimed that during the ten-day period of interrogation he was accused of insulting the government and turning people against the regime. He was accused of saying the President of Syria was a dictator.

5 The applicant said he eventually confessed to speaking against the President and to holding meetings. However, the Tribunal said that on the basis of its information about Syrian authorities it did not accept that he would only have been kept in detention for such a short period. It found it difficult to accept his claim that there was a note-taker in every period of interrogation, nor could it accept that the arrest warrant was signed by the head of the political security organisation. This is because the apparent scale of the alleged offence was reflected in a relatively short period in detention.

6 The Tribunal considered the applicant's evidence about the circumstances of his release. He claimed that in October 2000 he was asked to sign a statement undertaking not to leave the country and to honour a curfew. He was required to report to the security department upon request. He said he was told that he was guilty but was released the following day. The Tribunal was unable to accept that a person who had been told he was guilty of offences involving political activities would have been released in that way.

7 Other aspects of his evidence were also not accepted by the Tribunal. The evidence about the closure of the family farm gave rise to doubt that the applicant had been truthful in his claims for recognition as a refugee from Syria. He said in his application that the farm was closed permanently by the security department, but told the delegate that after his release the neighbour spoke to his father and said if the farm stopped (presumably in relation to the raising of chickens) then there would be no problems for the applicant and that the farm was not completely closed. He said the farm was still there but had no chickens after he sold a number of mature birds. The Tribunal said that this seemed to suggest that the farm had stopped production after his release. However, at the hearing the applicant said that the authorities had closed the farm the day after he was taken into custody in August 2000.

8 The applicant claimed that he left Syria on 4 November 2000 and that security officials had come looking for him on 6 November. He claimed that he had been told by his family that a warrant had been issued and distributed to all other departments with his car description and registration number. He also said they told him that there was twenty-four hour surveillance in front of his house. The Tribunal could not accept that such a pattern of close interest by the authorities would have occurred since they had released him from custody on 15 October.

9 The Tribunal did not accept that the applicant was thought by security officials to have been involved in any activity against the regime and if he was arrested and detained and required to report, as he claimed, the Tribunal was not satisfied that this was because of his political opinion.

10 The Tribunal also observed that the applicant's evidence about his arrest, detention and release was not based on any involvement he had in speaking against the Syrian President, nor did it have anything to do with him holding political meeting or knowing about dissidents. He had consistently claimed that it all followed from his neighbour's capacity to use his connection with the head of political security to intimidate him and that this occurred because of his refusal to stop farming chickens and so stop an unpleasant smell affecting the area around his neighbour's new house.

11 The Tribunal did not accept that there was anything illegal about the applicant's departure from Syria. It understood that in common with many Palestinians the applicant might feel that he had been denied a homeland but this did not mean that he qualified under the Refugee Convention. The Tribunal said he was able to complete some twelve years of education and a vocational course of study in Syria. He had his own apartment and a car and since 1997, a job managing the family poultry farm. He was educated and had experience and he could obtain employment, even if not on the family poultry farm. He was able to enter and leave Syria.

12 The Tribunal was not satisfied that he had experienced treatment amounting to persecution in Syria. Nor was it satisfied that there was a real chance that he would do so if he were returned to Syria.

13 As can be seen from this outline of the Tribunal's findings, essentially it did not believe the applicant's story. The applicant has made some submissions to the Court which call into question some of the Tribunal's findings. However, the Court has no power to interfere with the Tribunal's decision, even if it disagrees with its findings of fact. None of the matters advanced by the applicant shows any ground upon which the Court can interfere with the Tribunal's decision, nor on my own reading of the Tribunal's decision does it appear that any such ground exists. The application will be dismissed and the applicant is to pay the respondent's costs of the application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: January 2002

	WABA appeared on his own behaviour
Counsel for the Respondent:	Mr PR MacLiver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 January 2002
Date of Judgment:	17 January 2002