Hamada v Minister for Immigration & Multicultural Affairs [2001] FCA 1071

FEDERAL COURT OF AUSTRALIA

Hamada v Minister for Immigration & Multicultural Affairs [2001] FCA 1071 SAMI ADEL HAMADA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 54 OF 2001 EMMETT J PERTH 30 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 54 OF 2001

BETWEEN: SAMI ADEL HAMADA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 30 JULY 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 W 54 OF 2001

BETWEEN: SAMI ADEL HAMADA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 30 JULY 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant is a resident of Syria. He arrived in Australia on or about 6 October 2000. On 30 October 2000, he lodged an application for a Protection (Class XA) visa with Department of Immigration and Multicultural Affairs. On 15 November 2000, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 20 November 2000, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 20 February 2001, the Tribunal affirmed the decision not to grant a protection visa.

THE APPLICANT'S CLAIMS 2 The applicant claimed that he was born in Damascus in 1967. He said that he is a Palestinian citizen, resident in Syria. He travelled to Australia using a Palestinian travel document issued in Damascus. He said that document is now with the smuggler who assisted him to come to Australia. The applicant said he has never married. He is Sunni Muslim. He said his father is deceased and his mother lives in Damascus. He has six siblings, four live in Syria and two in Jordan. He had no knowledge of the United Nations High Commission for Refugees, although he was aware of the United Nations Works and Relief Agency ("UNWRA") for Palestinian refugees. However, he said that he had never been registered with that organisation and does not have a UNWRA card. 3 The applicant claimed that his problem in Syria is that there is a "man wanted by the government by the … same name as mine". He claimed that each time he made a job application or asked for documents, he would be interrogated and gaoled for two or three days. He said he tried to leave the country several times but they would put him in prison and beat him. He said that happened several times and that the last time they detained him for three hours when he was going to Dubai. He said he hated his life there but he has no other reason to fear returning to Syria. 4 In his subsequent application for a protection visa, those claims were repeated. He said in relation to the person with the same name as his that he believed that he is wanted by Syrian intelligence, as he is considered to be a member of the Muslim Brotherhood who "had attempted to organise a coup". He claimed that his problems started in about 1989 after he left the army and applied for a passport. He said that the military security came, questioned him and beat him for two or three days. He was then told that the investigations had nothing to do with him and he was released. He said that happened three or four times from 1989 to 2000. He said in his application that he feared that if he returned to Syria without his travel documents, which he had left with the smuggler in Indonesia, this would confirm the suspicion which the Syrian government has about him and he would be further persecuted as a result. 5 In the course of his original interview with a departmental officer on 1 November 2000, the applicant stated that he had visited his sisters in Jordan ten to fifteen times for up to one month. He also said that he had never been involved in any political activity. He said that while he had never been registered with the UNWRA, his father was a driver for UNWRA. He confirmed that he had no other reason for not wishing to return to Syria other than the claim of having the same name as a person wanted by the authorities. He said he had had no problem returning to Syria after each trip to Jordan. 6 On 10 January 2001, the Tribunal received a letter from the applicant's advisers with three photocopy documents attached, which had been translated from Arabic into English. The Tribunal described the documents as follows: (1) a notice to branches and units of the political and security division to arrest a person by the same name as the applicant dated 3 June 2000, (2) a document headed "Attendance Orders" from the Intelligence Division of the General Command of the Army to a person with the same name as the applicant for him to present himself to the Intelligence Division on 27 September 2000, and (3) a poor copy of a partially translated document bearing the date 26 November 2000, which is from the General Commission for the Protection of the Arab Palestinian Refugees. The document makes no mention of the applicant or anything of any apparent significance. 7 On 16 January 2001, the Tribunal received two letters from the applicant's adviser. One attached a letter from the UNWRA stating that it had no record of a member with the applicant's name. In the other letter the advisers asked that the applicant's claim be considered on the basis that he had been detained and beaten in Syria as a suspected member of the Muslim Brotherhood because of mistaken identity and that, if he returns, he would be beaten again and imprisoned. 8 The Tribunal conducted a hearing at Port Hedland where the applicant is in detention. During the hearing he claimed that he had two problems in Syria. One was "political" and the other was "nationality" in that "over 90 per cent of Palestinians are persecuted in Syria". 9 In relation to the man for whom he claimed to be mistaken, the applicant said that he in fact had no idea at all who that person was, nor why he was of interest to the Syrian authorities. He said that he only knew that he had a similar name, he did not know who he was or anything about him. He was asked whether it had ever occurred to him to do something about the claimed problem. He said that once he had attempted to go to the Ministry of the Interior and see someone, but the guard would not let him in. He said that he was taken to a police station and beaten up. The Tribunal said to the applicant that it was difficult to believe that as being true. The applicant responded that in Syria things like that happen. 10 The applicant said that the claim that he was a suspected member of the Muslim Brotherhood was a mistake of the previous interpreter who had been a male, which is why he had asked for a female interpreter this time. The Tribunal observed that there was in fact no specific request for a particular gender of interpreter. 11 In relation to his specific claims, the applicant said that he had first encountered a problem soon after leaving the army, and that over the years, he had encountered the same problem on numerous occasions. He said he could not say how many times he had been detained and beaten. He was asked several times to clarify and said, "seven, eight, ten, fifteen times, I don't know". The Tribunal put to him that he had previously said that this had caused a problem "three or four times". He responded that that was not true, it happened every time he encountered officials for such things as a passport or driver's licence. He said that he could not remember how many times he had been arrested but said that every time he was arrested, he was beaten. 12 In relation to the three documents that were sent by his advisers, the applicant said that he had received them from his mother some time after 1 November 2000. When asked what the summons was for, he said that when he was leaving Syria he had friends around to say goodbye. He said that they were talking about various things and that he and others made the comment that the system was corrupt, because the government had quickly passed legislation to allow the new President Al-Asad to take office. He said that one of those present, unknown to the others, was in fact a spy for the government. The spy told of what the others had said and hence, a warrant was issued for the applicant. The applicant claimed that his friends had been arrested. 13 The Tribunal pointed out to the applicant that he had made no mention of that matter until the day of the hearing. He claimed that he did not know of it until he had asked his mother for documents to show that the authorities were interested in him. It was then that she said that there was a warrant there for him. He was asked if he had ever told his adviser and he said that he had not.