Tanji v Minister for Immigration & Multicultural Affairs [2001] FCA 1100

FEDERAL COURT OF AUSTRALIA

Tanji v Minister for Immigration & Multicultural Affairs [2001] FCA 1100

MIGRATION – application for an order for review - persecution for reason of political opinion – distinction between political activity and political opinion – imputed political opinion – family as a social group – where RRT has incorrectly applied the law to the facts – where RRT has asked itself the wrong question Migration Act 1958 (Cth) s 476 (1)(e)

Cameirao v Minister for Immigration and Multicultural Affairs (2000) FCA 1319 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Ethnic Affairs v Yusuf (2001) 180 ALR 1 SAMIR MOHAMMED TANJI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 90 of 2001 TAMBERLIN J PERTH 10 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 90 OF 2001

BETWEEN: SAMIR MOHAMMED TANJI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 10 AUGUST 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application for review is granted. 2. The decision of the Refugee Review Tribunal is set aside. 3. The matter is referred back to the Refugee Review Tribunal, differently constituted, for consideration. 4. The respondent to pay the applicant's costs of this 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 W 90 OF 2001

BETWEEN: SAMIR MOHAMMED TANJI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 10 AUGUST 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant is a Palestinian born in Syria who arrived in Australia on 12 October 2000. On 23 October 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 8 December 2000 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa and on 12 December 2000 the applicant applied for review of that decision to the Refugee Review Tribunal ("the RRT"). 2 In its decision of 6 March 2001, the RRT affirmed the decision not to grant a protection visa. Details of the background claims and evidence are set out in the RRT decision and I will not repeat them here. 3 The principal facts are that the applicant was born in Damascus, Syria, in 1976 and lived all his life in Syria, with the exception of a three month period in Lebanon in about July 2000. His father, who died in 1999, had been an officer with the Fateh movement. His father's involvement with Fateh occurred during the Lebanese War. On his return to Syria, the applicant's father was detained and severely mistreated for a period of two years during the 1980s. The RRT accepted that the applicant's father was, on occasion, questioned by the authorities after his release from detention, but noted that he was not again detained by them. The RRT did not accept that the death of the applicant's father was a "direct result of his treatment by the Syrians". 4 The applicant has never been involved in any political organisation, nor has he been questioned by the authorities specifically in relation to Fateh. The applicant has two brothers and they have never been questioned or arrested by Syrian authorities. Nor have they ever been involved in any political associations. 5 In its findings and reasons, the RRT found the applicant to be a generally credible witness. However, he was found to have exaggerated that section of his account which dealt with his treatment by the Syrian authorities following their refusal to give permission for him to go to Lebanon. 6 The RRT accepted that Palestinians in Syria are discriminated against in a number of respects but did not accept that the aplicant's unemployment, for example, was related to his ethnicity, but found that it was due to the poor economic situation in Syria. While the RRT accepted that the applicant faced difficulties because of his Palestinian background, it did not accept that the difficulties described by the applicant were sufficiently serious to amount to persecution in a Convention sense. At page 11 of its decision, when considering the evidence, the RRT records: "It was put to the applicant that he had not mentioned in the hearing the events he described in his statement to the effect that he was called in for questioning 3 times by Syrian Intelligence and was bashed by them after he was refused permission to go to Lebanon. He said that everything happened as he described in his statement. He was asked why he had not mentioned this, which seemed to be an important claim, earlier in the hearing. He said he had not been asked a question about it and therefore he had not provided the information. He said that he would get a notice from the Intelligence telling him to go into the office. When he got there, they would take him in a car with a bag over his head and would beat him up and punch and kick him. This would go on for 2 or 3 hours. They would ask questions about why he wanted to go to Lebanon. He told them it was for medical reasons but they did not believe him. They would say things to him such as 'Why are you like your father?'. The applicant said that these incidents took place over some months from around February to June or July before he went to Lebanon." (Emphasis added) 7 The applicant's version of these incidents was basically accepted by the RRT which said, at 23: "The applicant has claimed that the authorities not only withheld permission for him to go to Lebanon, but that they called him in on three occasions in early 2000 to harass him after they had refused him permission to go to Lebanon. The applicant's written and oral accounts of what happened to him on the three occasions when he was called into Intelligence were vague and lacking in detail, beyond the applicant's assertion that when he got to Intelligence he would be beaten, punched and kicked, and that these incidents took place over a period of a few months in 2000 before the applicant went to Lebanon in July of that year. There do not appear to have been any specific allegations made to the applicant about the reason for their behaviour towards him, beyond comments that the applicant was like his father. The Tribunal accepts that the applicant was called in by Security on a number of occasions and that he was insulted and mistreated by Security officers by being kept for some hours on each occasion, and on one occasion overnight, and by being punched, kicked and beaten. The reason for the applicant's mistreatment is not readily identifiable. The applicant was effectively apolitical. While his father had worked for Fateh almost 20 years ago, his father's detention had long been over. No attempt had been made to question or harass the applicant or his brothers in the past because of their imputed political opinion. The mistreatment therefore appears to have been in the nature of bullying, of an exercise of vindictiveness by a particular group of officials over a person who was perceived as physically weak, or at least suffering from an illness. The applicant himself says in his Statutory Declaration: 'They just wanted to torture me', implying that there seemed to be no logical reason for their behaviour." (Emphasis added) 8 The RRT concluded, at 24: "The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reasons of his political opinion if he returns to Syria. It is of the view that the group who harassed and mistreated the applicant in early 2000 used his father's political history as a vague rationale for bullying him, and an intimidatory tactic, rather than because they suspected him of anti-regime political activity. As the Tribunal has noted, he was never questioned about his political activities until he was refused permission to go to Lebanon, his brothers were never questioned, and he has never engaged in political activity. Furthermore, the independent information indicates that the authorities' treatment of those engaged in actual or imputed opposition political activity is very harsh (see for example, the US State Department and Amnesty International Reports for 1999, page 12), often including prolonged detention and torture. This did not happen to the applicant in the past." (Emphasis added)