Shofi, Samir v Minister for Immigration & Multicultural Affairs [1998] FCA 801

FEDERAL COURT OF AUSTRALIA migration – refusal of Refugee Review Tribunal to grant refugee status – substantial justice and merits of the case – whether the Tribunal correctly identified the applicant's claims – error of law – test for well-founded fear of persecution Words and Phrases – "well-founded fear" – "speculative" – "persecution" – "social ostracism" – "argued"

Migration Act 1958 – sections 420, 424, 425, 475, 476 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567

samir shofi v minister for immigration and multicultural affairs

ng 827 of 1997

einfeld j

sydney 10 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 827 of 1997

BETWEEN: Samir Shofi

Applicant

AND: Minister for Immigration and Multicultural Affairs

Respondent

JUDGE: JUSTICE EINFELD

DATE OF ORDER: 10 JULY 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed 2. the applicant pay the respondent's costs of the proceedings 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 827 of 1997

BETWEEN: Samir Shofi

Applicant

AND: Minister for Immigration and Multicultural Affairs

Respondent

JUDGE: JUSTICE EINFELD

DATE: 10 july 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT

factual background The applicant, Samir Shofi, is a citizen of Israel who comes from the village of Majdal Shams in the Golan Heights. He arrived in Australia on 20 August 1990, apparently on a visitor's visa which was later extended at least twice. He lodged an application for a protection visa with what is now the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act) in June 1991 but this application appears to have been lost so another one was lodged on 18 November 1991. The applicant was granted permission to engage in employment during the determination of his application. After a delegate of the respondent Minister (the delegate) refused a protection visa on 21 June 1995, the applicant sought a review by the Refugee Review Tribunal on 11 July 1995. The Tribunal hearing took place on 5 February 1997 and on 3 September 1997, it affirmed the delegate's decision. The applicant now appeals that decision to this Court. Majdal Shams is a Druze village which also has a few Christian inhabitants. The applicant and all of his family are ethnically Druze, meaning that they are neither Arab nor Muslim. Prior to 1967, the Golan Heights were part of Syria so that all of the applicant's family held Syrian nationality with Syrian passports and ID cards. During the Six Day war in 1967 the Golan Heights was captured by Israel. During the Yom Kippur War in October 1973, when Egypt and Syria attacked Israel, Syrian forces occupied the area surrounding Majdal Shams for a short period. The area was subsequently re-taken by Israel and in December 1981 Israel formally annexed the Golan Heights, although the area remains Syrian territory under international law. The annexation meant that all residents of the region became entitled to Israeli passports and citizenship without which, the applicant stated, they were not able to access government services such as medical treatment, and work rights in Israel proper were severely restricted. The applicant's evidence to the Tribunal was that the Israelis put pressure on the inhabitants of Majdal Shams to take out Israeli citizenship although the idea was strongly opposed by the majority of the Druze in the region. In 1982 the applicant took out Israeli citizenship and has remained an Israeli citizen since that time. He entered Australia on an Israeli passport. the refugee DEFINITION Pursuant to sections 5(1) and 36(2) of the Act, a criterion for refugee status is that the applicant is a person towards whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (the Geneva Convention). Article 1A(2) of the Geneva Convention defines a refugee as 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.