Mawas v Minister for Immigration & Multicultural Affairs [1999] FCA 553

FEDERAL COURT OF AUSTRALIA

Mawas v Minister for Immigration & Multicultural Affairs [1999] FCA 553 MOHAMED SOBHI HEKMAT MAWAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 650 of 1998 Burchett J 23 April 1999 Sydney

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 650 of 1998

BETWEEN: MOHAMED SOBHI HEKMAT MAWAS

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BURCHETT J

DATE: 23 APRIL 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal. The applicant applied for a protection visa, on the ground that owing to a well-founded fear of being persecuted for reasons of religion or political opinion, he was outside the country of his nationality, namely, Lebanon, and was unable or, owing to such fear was unwilling to avail himself of the protection of that country, within the meaning of the applicable portion of the well-known Convention provision relating to refugees. The Tribunal rejected his case, and he has appealed to this court. As has been constantly reiterated, this court has no jurisdiction with respect to the facts of such a case, and indeed, does not have a general jurisdiction even with respect to the law, but only a limited jurisdiction with respect to particular classes of legal questions that may have arisen. 2 A curious event occurred at the commencement of the hearing in the Tribunal. As is revealed by the transcript, a migration agent representing the applicant asked permission to call a witness out of order, because that witness would only be available during the morning, or at any rate, up until no later than 1.15 pm. Courts of justice commonly accede to applications of that kind, even at some little inconvenience, on the basis that, so far as the witness is concerned, he ought not to be inconvenienced more than is necessary by the performance of what is really a public duty in making himself available to give evidence, and that, so far as the litigant is concerned, justice demands he should not lose the benefit of evidence for a reason for which he is in no way responsible. Of course, there are occasions when various practical demands require adjustments to be made, and decisions to be made, weighing up the relative seriousness of various demands upon its time which may affect a Tribunal. But it is certainly not to be thought, and I make this clear, that anything said in this court should condone an attitude which would decline to give a person a proper opportunity to present evidence simply because of a relatively minor inconvenience with respect to time. However, what happened in this case is certainly at the lower end of any scale of problems of that sort. For the Tribunal, being unwilling to allow the evidence to be given out of order, and though it certainly was less than inviting of the adoption of any alternative procedure, did not finally rule that it would not permit the evidence to be given on some other occasion. What it did do was suggest that the witness's evidence might be put in writing and submitted within the next week. 3 In fact, evidence was submitted in writing, and it now appears clear that the issues to which it went were not the issues that ultimately proved decisive in the case. This being so, although the matter is cause for some concern - since the Tribunal has a clear duty, specified in the statute (the Migration Act 1958) by s 420, to pursue the objective of providing a mechanism of review that, among other things, is fair and just, and a clear duty expressed by the words "must act according to substantial justice and the merits of the case" – nevertheless, I have come to the conclusion that it cannot be said the evidence, as it ultimately came to be put before the Tribunal, was given in circumstances which in substance denied justice to the applicant. 4 The basis on which, in fact, the matter was decided emerges with some obscurity, but I have come to the conclusion sufficiently, from reasons, parts of which I shall now recite. The Tribunal said: "While the Tribunal finds that, on the whole, the Applicant gave a truthful account of the circumstances leading to his departure from Lebanon, it is also clear that in some respects his evidence lacks credibility, as does that of his witnesses. For example, the Applicant said that his business problems started in 1991; that his family made four payments to the trader at seven or eight monthly intervals and that he spoke to Ali Mohsen around the time of the fourth payment (so that this would have been in about 1993); he also claims that in 1991 he fled from Tripoli to Beirut; that after seven months he was forced back to Tripoli by Ali Mohsen and that he then returned to Beirut and never returned to Tripoli; however, he also gave evidence that he heard about Al Tawheed members going missing in Tripoli during 1993 and 1994. There is also the evidence of the first witness that he saw the Applicant in around April 1991 in Tripoli at his cousin's house, and that he also saw him in Tripoli in 1995. The second witness also stated that he had seen the Applicant in Tripoli, and heard that he went there after the time that the Applicant said that he never returned. It is possible that these matters merely arise from confusion about dates and times; however, I am of the view that the Applicant, his witnesses and his adviser have sought to exaggerate some aspects of the Applicant's circumstances in order to give a particular complexion to his case. This is even more evident when the claims made in the Applicant's written material and in the adviser's submission lodged after the hearing, are compared with those made orally, both at interview with the Department and before the Tribunal. In his oral evidence, the Applicant did not press his claims that he was involved in any political organisation; nor did he seek to argue that his problems had any political component. It appears to me that the written material seeks to portray a Convention relationship between the Applicant's difficulties and his political opinion which clearly does not exist. The Applicant gave unequivocal evidence at the hearing that he is not, and never has been a member of any Sunni political or religious organisation; while I accept that he may have been detained for distributing leaflets on behalf of such an organisation in 1982, it is clear from his evidence that he suffered no consequences of any kind in the years following his release, despite the fact that this period encompassed the most brutal period of suppression of the Sunni opposition in Tripoli. He gave unequivocal evidence that he had no political problems following, or as a consequence of, his arrest in 1982. If his adviser's submission of 25 May 1998 is accepted, this would follow from the fact that he was arrested in 1982 under a different name, and presumably, was never identified later on. In any event, I do not accept that, even if he were suspected of being a current sympathiser of such an organisation, this would cause any problems for him in the present circumstances prevailing in Tripoli. The independent evidence shows that with the crushing of the united Sunni opposition movement, at Tawheed, and the subsequent rapprochement between Syria and Iran, membership or suspected membership of Tawheed has not, and would not lead to persecution by the Syrian forces in Lebanon. It is not plausible, in my view based on the evidence, that the Syrians should continue to target an individual who, on his own evidence, was not even an active member of any opposition organisation, well after that group had ceased to be a threat to them. For these reasons I am not satisfied that any problems the Applicant may have experienced in 1991 and later were because of his political opinion or a political opinion which may have been attributed to him. When the evidence as a whole is considered, and in particular the oral evidence of the Applicant given at the hearing, it is clear that the credible evidence supports a conclusion that the Applicant's problems were entirely financial – caused by his failed business operation which resulted in him owing a large amount of money to the Syrian trader. While I accept that the trader may have resorted to brutal tactics to seek repayment of the money, and that he may have utilised the services of Ali Mohsen, a Lebanese based political ally of Syria, I am not satisfied on the basis of the credible evidence before me that this matter is in any way related to the Convention. Even accepting that there is longstanding political and religious animosity between Sunni Muslims in Tripoli on the one hand, and the Syrians and their ADP allies (of whom I accept that Ali Mohsen is a member) on the other, I am not satisfied on the evidence that there is any relevant religious or political component to any ill treatment which the Applicant may have suffered at the hands of these people in the past; or which he may well face in the future. I am satisfied on the basis of the evidence that the Applicant's difficulties were caused by and directed at him because of his financial dealings and not for any Convention reason. I do not accept the Applicant's account of having been entrapped by the Syrian trader and Ali Mohsen so that he would, as he claims, be forced by his financial position to act as an informer for them. While I accept that Syrian intelligence and its informers are active in Lebanon, it is not credible that the Syrians would go to the lengths claimed by the Applicant in this case to force someone to inform for them who was clearly reluctant to do so; the reasons put forward by the Applicant to explain his selection as a prospective informer are not plausible. I do not accept that they asked the Applicant to set explosives in Tripoli mosques: there is no independent evidence to suggest that any such acts of violence have been perpetrated against the Sunni population of Tripoli in recent years, and the Applicant himself, in effect, acknowledged this. Moreover, the independent evidence, which I accept, suggests that the Sunni Muslim resistance organisation is no longer politically active, or viewed as a threat by Syria or her allies. There is therefore no reason to suppose that Syrian intelligence, or Syria's Lebanese allies, would be so vitally interested in obtaining information about the organisation, or doing it harm, that they would pursue the Applicant to the extent he claims, merely to force him to inform against that organisation. I do not accept therefore that the Applicant's financial problems came about as the result of a trap set by Syrian intelligence; or that any ill treatment subsequently directed at him was for reason of his failure to act as an informer, or because of any political opinion that may have been imputed to him as a result of his failure to act as an informer; rather I am satisfied that the subsequent ill treatment was directed against the Applicant either to punish him for his indebtedness, or to force him or his family to repay the money owed to the Syrian trader. This is further evidenced by the fact that his family did make some repayments – which were clearly, according to the Applicant's oral evidence, in the nature of loan repayments rather than the "ransom" referred to in his application. There is no credible evidence to suggest that the Applicant, as a debtor owing money to an obviously ruthless and brutal individual, was treated particularly harshly on account of his religion. While the Applicant may well hold a genuine belief that this is the case, it is not borne out by any objective assessment of the facts. There is no independent evidence of any ongoing persecution of the Sunni Muslim population of Tripoli by either Syria or her ADP allies; nor is there any evidence before the Tribunal to suggest that the Applicant had, prior to his failed business relationship, experienced any persecution on account of his religion. It is clearly the business problems and his debt that led to his ill treatment at the hands of the Syrian trader and Ali Mohsen. Accordingly, even if I accept that the harm feared by the Applicant is sufficiently serious, and that there is a real chance that it may continue to be inflicted upon him if he returns to Lebanon, that harm is not directed at him for any Convention reason, and is therefore not persecution within the meaning of the Convention. Rather, it is private harm inflicted upon him as an individual, for commercial reasons. In these circumstances, no matter how serious the harm feared by the Applicant, it is not harm against which the Convention provides protection." 5 In his submissions, Mr Diab, for the applicant, drew my attention to s 430 of the Migration Act, pursuant to which there is imposed on the Tribunal a duty, amongst other things, to set out the findings on any material questions of fact, with reference to the evidence or any other material on which the findings of fact were based. He submitted that this provision had not been complied with, in particular with respect to an allegation made by the applicant that he had been beaten and tortured and chained up like a dog. It is true that no explicit finding was made on this matter, and I think it is also true that an explicit finding ought to have been made. However, I have concluded, although with some difficulty, that the Tribunal did implicitly accept that persecution, whether or not absolutely of this severity, did occur, and the Tribunal found it unnecessary to determine the precise severity of the persecution because it did implicitly find conduct that was, at any rate, sufficiently severe to satisfy the concept of persecution, so far as the harmfulness of the conduct to the applicant is concerned. The reason the Tribunal, nevertheless, rejected the applicant's application was that this conduct, it found, did not occur for a Convention reason. That being so, although I think the Tribunal's reasons were indeed open to some criticism, I do not think, ultimately, that the criticism has been shown to go far enough to require or justify the court in making a finding in favour of the applicant upon this application. 6 I turn to the next point made, which was that the Tribunal looked at what is frequently, in these cases, referred to as "country information" in deciding whether the Syrians and their Lebanese allies would, on the probabilities, have been likely to have been interested in attempting to coerce the applicant into acting as an informer for them. The submission was that this was not the question to which the Tribunal should have been directing its attention, but it seems to me that it was a rational test to apply, and that the authorities justified the Tribunal in applying this test to the applicant's evidence in order to ascertain whether that evidence was consistent with the known circumstances, at the time, in the country. That is to say, this was a test as to whether the fears of the applicant were well-founded in matters that would attract the application of the Convention. The applicant did have a subjective fear, on the findings, but the question is, again, was it well-founded in a Convention reason? 7 Mr Diab referred also to the question of imputed political opinion. This matter is touched upon in the reasons of the Tribunal, and Mr Diab did accept that it was open to the Tribunal to find, as a fact, that the applicant was tortured for reasons connected with the debts he owed, and not in order to force him to become an informer. Had it been to force him to inform, certainly a political matter, which he refused to do, a political reason for the persecution would have been involved, but the finding of fact was that the ill-treatment of the applicant was inflicted upon him by a brutal creditor as a means of attempting to extort payment of debts, and not for a Convention reason. Mr Diab put his submissions as if the expression "well-founded" could be related to ill-treatment, however caused or motivated, so that a fear could be described as well-founded if it was due to ill-treatment which was not itself inflicted for a Convention reason. While there are, of course, similar cases where the infliction of harm is for reasons which cannot be clearly isolated as outside the purview of the Convention, in this case, the reason I have just stated as the reason found by the Tribunal is plainly a reason quite outside the purview of the Convention. In those circumstances, it seems to me that the foundation of the fear may be in a real chance of harm, but it is not in a real chance of persecution for a Convention reason. Accordingly, I have concluded that the application must fail. 8 Counsel for the respondent has sought an order for costs against the applicant, but I think the obscurity of the reasons, and their failure to deal clearly with the central issue, despite the terms of s 430, make it plain that the applicant's application was one which it was reasonable for him to bring in connection with a matter involving Australia's international obligations, obligations in respect of which the procedure of application to the Court, limited though it is, as I have already said, is the only practical measure open in a case where the initial decision is less than satisfactory. It is accepted by counsel for the Minister that I have a discretion in respect of costs, and I think, in all the circumstances, including those that I have just mentioned, I should exercise that discretion against making any order as to costs. Accordingly, the application will be dismissed, but there will be no order as to costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice .