Al-Feghali, Georges v Minister for Immigration & Multicultural Affairs [1998] FCA 759

FEDERAL COURT OF AUSTRALIA

IMMIGRATION LAW - judicial review pursuant to s 475 of the Migration Act 1958(Cth) - decision of Refugee Review Tribunal to refuse to grant a protection visa - whether there was an incorrect application of the law to the facts as found by the Tribunal. Migration Act 1958 (Cth) - ss 475, 476, 476(1)(e), 476(2) Convention Relating to the Status of Refugees, Geneva, 28 July 1951 GEORGES AL-FEGHALI -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1056 of 1997 FOSTER J 5 MAY 1998 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1056 of 1997

BETWEEN: georges al-feghali

Applicant

AND: minister for immigration and multicultural affairs

Respondent

JUDGE: FOSTER J

DATE OF ORDER: 5 MAY 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with 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 1056 of 1997

BETWEEN: georges al-feghali

Applicant

AND: minister for immigration and multicultural affairs

Respondent

JUDGE: FOSTER J

DATE: 5 MAY 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (Extempore) This is an application brought pursuant to the provisions of ss 475 and 476 of the Migration Act 1958 (Cth) ("the Act"), seeking an order for review of a decision given by the Refugee Review Tribunal ("the Tribunal") on 18 November 1997. By that decision the Tribunal affirmed an earlier departmental decision not to grant to the applicant, Mr Al-Feghali, a protection visa which he had sought. The scope of the review of decisions of the Refugee Review Tribunal by this Court is, of course, significantly circumscribed by the provisions of the Act itself. It is no longer possible for this Court to give consideration as to whether any rules of natural justice have been breached in the reaching of the Tribunal's decision or indeed whether the decision exhibited qualities that would have led to it being so unreasonable that no reasonable person could have reached it. These limitations are expressly stated in subs 476(2). The current application is made in terms of subs 476(1)(e) which provides the following ground for review:- "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; ..." In the present case the second limb of that section is relied upon. It is asserted on behalf of the applicant that the Tribunal incorrectly applied the law to the facts found by it. It is put that, as a matter of law, upon the facts as found by the Tribunal on the evidence before it, the Tribunal could only have reached a decision favourable to the applicant, namely, that he was, in terms of Article 1 of the 1951 Convention Relating to the Status of Refugees ("the Refugees Convention"), a person who, owing to a well-founded fear of being persecuted for reasons of political opinion, was unable to avail himself of the protection of his home country of Lebanon, and was, therefore, relevantly, a refugee and entitled to the protection visa that he claimed. In these circumstances, the area for my decision is a very narrow one. The findings of fact and reasons for decision are stated very succinctly by the Tribunal. It is said that certain findings to be found in this portion of the Tribunal's decision impel the finding that the applicant was a refugee. I have been taken to certain portions of the decision and the most convenient way of dealing with the matter is to have regard to those portions in the first instance. The applicant relies upon a paragraph appearing on page 9 of the Tribunal's decision which reads as follows:- "The information cited above concerning trade union activities suggests that the authorities in Lebanon, and the Syrian military presence in Lebanon, may well target trade unionists who openly opposed the Syrian presence in Lebanon." Another portion of the Tribunal's reasons upon which the applicant relies appears in part of a sentence on page 10 which reads:- "While the government might well be engaging in serious human rights abuses towards union leaders..." The applicant also points to the fact that the Tribunal accepted that he was an active member of a trade union in Lebanon from 1986, and that in 1990 he suffered what the Tribunal described as "harassment" when a petrol bomb was exploded outside the union's meeting premises. It is put on behalf of the applicant that when all these facts are taken together only one answer could be returned by the Tribunal, namely, that if he returned to Lebanon he would necessarily suffer persecution at the hands of the authorities because of his prior involvement in the trade union movement in that country. It was also put that the Tribunal should have assumed that, if the applicant returned to Lebanon, he would in fact engage in the type of activities which attracted the harassment in 1990. Insofar as this latter submission was made as a submission of law, I must necessarily reject it. No authority has been cited to me which would require a Tribunal in approaching a decision under these sections of the Act to make an assumption that prior activities would necessarily be continued by an applicant if he returned to his home country. Indeed, it would appear that the situation in the present case was that no issue of fact was presented to the Tribunal for determination along these lines. Certainly, in my view, the Tribunal was not, as a matter of law, obliged to make any such assumption. Returning to the applicant's major submission, it is an inevitable requirement in considering this question of law that the passages which are relied upon must all be read in the light of other passages in the Tribunal's reasons. In relation to the incident of the explosion of the petrol bomb in 1990 the following comment must be made. The Tribunal finds that this incident "may well have happened" but notes that this would have occurred "at the height of the civil war". The Tribunal goes on to indicate in its reasons, that evidence set out earlier in the judgment states that since that time there had been a lessening of civil conflict in Lebanon. Additionally, the Tribunal entered upon a consideration of other claims that had been made by the applicant in relation to that period and subsequent periods. The applicant had claimed that Syrian intelligence authorities had pursued him in 1990 and, it would appear, in subsequent years until he left for Australia in 1994. It was claimed that armed men had been out to kill him and that he had been forced to leave Lebanon on occasions and travel to Cyprus to take refuge. In so doing he had been able to facilitate his escape from Lebanon through the port of Jounieh, as a result of that port being in the hands of forces who were friendly towards him. This evidence was considered by the Tribunal and the Tribunal made a finding of fact about it. It is unnecessary for me to set out in full the Tribunal's reasons. However, the significant feature is that the Tribunal, having considered the evidence, found as a fact that it did not accept that, at the time claimed, he was wanted by the Lebanese or Syrian authorities. Other claims made by the applicant were to the effect that the offices of the trade union's solicitor had been ransacked in 1996, the year prior to the making of his visa application, and that he was still being sought by the authorities in Lebanon as evidenced by visits from the authorities to his parents' home requesting information as to his whereabouts. These claims were not accepted by the Tribunal. In fact, the Tribunal made a finding in terms which incorporate the passage which the applicant has relied upon and significantly dilutes the effect of it. The passage reads as follows:- "While the Government might well be engaging in serious human rights abuses towards union leaders, the Tribunal does not believe that the profile of the Applicant to be such as to make him of current interest to the authorities." It is, of course, the position at law that the Tribunal must determine whether the claim for refugee status has been made out as at the time when the Tribunal reaches its decision in the matter. It is significant that the Tribunal made a finding that it did not accept that the applicant was likely to be of current interest to the authorities who might have had some interest in persecuting him in the past. The Tribunal summed the matter up by saying that it was "... not satisfied that at the present time, or in the reasonably foreseeable future, the applicant has a real chance of Convention related persecution in Lebanon." In those circumstances, the Tribunal was satisfied that the alleged fears of persecution were not well-founded. These findings of fact are not reviewable by the Court. When they are read together, as they must be, they, in my opinion, take the ground from beneath the submission made by Mr O'Brien that there was a relevant error of law. One matter I should refer to is one of the passages cited earlier from the reasons for decision, which related to trade unionists rather than to people who would qualify as leaders in the trade union movement. In light of the whole of the material and the reasons for decision I am not able to find that the Tribunal in that particular paragraph was indicating in any real sense a finding that should the applicant return to Lebanon he would be a target for persecution simply because of previous opposition on his part to the Syrian presence in Lebanon. The other findings of fact made by the Tribunal clearly and sufficiently, in my view, indicate the basis upon which the Tribunal was unable to come to any finding that the applicant was relevantly entitled to protection. In those circumstances there is only one decision that I can come to. I must dismiss this application with costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.