FEDERAL COURT OF AUSTRALIA Othman v Minister for Immigration & Multicultural Affairs [2001] FCA 1250 ALI OTHMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 76 OF 2001 EMMETT J 3 AUGUST 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 76 OF 2001 BETWEEN: ALI OTHMAN APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 3 AUGUST 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 76 OF 2001 BETWEEN: ALI OTHMAN APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 3 AUGUST 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant, who is a Palestinian born in Syria, arrived in Australia on 7 October 2000. On 26 October 2000 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs ("the Department"). On 10 January 2001, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a visa and on 17 January 2001 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 9 March 2001 the Tribunal affirmed the decision not to grant a protection visa. On 14 March 2001, the applicant filed an application to this Court for an order of review of the decision of the Tribunal. 2 In considering the application before it, the Tribunal had access to the Department's file, which included a record of interview on the applicant's arrival in Australia, the applicant's protection visa application, written submissions in support of the application and record of interview with an officer of the Department. The Tribunal also had before it written submissions in support of the application for review and the applicant gave oral evidence to the Tribunal. 3 It appears from the Tribunal's reasons that in his initial interview the applicant said that he was a Palestinian, born in Damascus in Syria in 1974 and that he was unmarried. He finished his education in 1990. According to his protection visa application, the applicant's parents, who were born in Palestine, are deceased. He has three sisters and two brothers resident in Syria. Another brother was killed. The applicant said in his visa application that he was registered with the United Nations Relief and Works Agency for Palestinian Refugees ("UNRWA"). 4 The applicant claimed that his father was a member of the Fatah Revolutionary Council ("FRC") all his life and that he received a salary from that organisation. The applicant said that he decided to join the organisation in 1998. He said that his job was to guard the office of the FRC on weekends. The applicant claimed that he supports the FRC's goal to liberate the Palestinian people. He claimed he believes that Arafat had betrayed his people. He claimed that it is illegal to be a member of the FRC in Syria and that the penalty for membership of the group in Syria is seven years' imprisonment. 5 In his application, the applicant said that on 18 September 2000 he had an argument with his cousin, to whose sister he was engaged. He said that his cousin made threats to him, saying "I'll show you". The applicant claimed that he had used a false medical certificate to obtain an early discharge from his military service. On 20 September 2000 he was told that his house had been raided by the Syrian Intelligence. He said that he believed his cousin had sent the Syrian Intelligence to his house because he knew about what the applicant had done to shorten his military service. He said that the Syrian Intelligence had found certain things there, including his army service record book, his "Abu Nidal card" and his father's pistol. Sabri al-Bana, also known as Abu Nidal, was the chairman of the FRC. 6 The Tribunal accepted that the applicant's claims that he: · was of Palestinian ethnicity, · had been born in Syria · had been resident in Syria for most of his life, and therefore Syria is the applicant's "country of former habitual residence", and · is not or is no longer registered with UNRWA. However, the Tribunal was not satisfied as to the credibility of some significant areas of the applicant's claims. It had considerable difficulty with his claims concerning Abu Nidal. It considered that his confusion about or lack of knowledge of Abu Nidal suggested that his connection with the FRC was only ever marginal. 7 The Tribunal further accepted that, following the argument that the applicant had with his cousin in September 2000, his cousin informed on the applicant to the Syrian Intelligence. The Tribunal accepted that Intelligence raided the applicant's house as a consequence and found documents there relating to his army service, a card issued by Abu Nidal and the applicant's father's pistol. The Tribunal accepted that Intelligence, as part of their questioning of the applicant's brothers both before and after he left Syria, raised the matters of the Abu Nidal card, the applicant's illegal avoidance of his military service and his possession of a pistol. The Tribunal accepted that the applicant left Syria less than ten days after the raid during which the incriminating material was found. 8 The applicant did not claim that he had suffered harm in the past for reason of his illegal avoidance of military service or his relationship with Abu Nidal. However, he claimed that he was detained for two days in 1995 because he was visiting a mosque. The Tribunal accepted that he was arrested as he claimed. However, the Tribunal did not accept that the reason for the applicant's arrest was his religion. The Tribunal concluded that the arrest was because the applicant was briefly suspected of involvement with the Muslim Brotherhood, a group whose political, rather than religious, beliefs are of concern to the authorities in Syria. 9 The Tribunal concluded that the authorities were satisfied, after detaining the applicant for a short period, that he had no involvement with the Muslim Brotherhood. The Tribunal was not satisfied that any accusation of being involved in a Muslim group was a serious accusation, given that the applicant had not been questioned about any such matter for six years before he left Syria. 10 The Tribunal accepted the validity of certain documents produced by the applicant, being a summons to the applicant dated 27 September 2000 and an administrative order dated 7 December 2000. The Tribunal drew the inference that the applicant is to be penalised because of his actions in relation to his military service. The Tribunal found that the administrative order imposes a penalty on the applicant for his illegal actions to avoid full military service. 11 The Tribunal accepted that the applicant is afraid of being persecuted by the authorities if he returns to Syria. It referred to his claims in his application for a protection visa that he is afraid · of being persecuted for his political opinion and his Palestinian nationality; · that he will be imprisoned because of his association with Abu Nidal and his false discharge from the army; · of being persecuted because of his family's involvement with Abu Nidal and the discovery of a pistol during the raid by the Syrian Intelligence; and · that the fact that he sought asylum in Australia will be held against him. 12 The applicant provided no evidence that he had been persecuted in the past for reasons of his ethnicity as a Palestinian. The Tribunal did not accept, therefore, that the applicant had suffered persecution in the past because of his ethnicity. Further, the Tribunal considered that it was highly unlikely that the mere discovery of a card associating the applicant with the Abu Nidal group would result in any harm being done to him by the Syrian authorities. The Tribunal was therefore not satisfied that there is a real chance that the applicant will be persecuted on his return to Syria for reasons of his political opinion as a supporter of Abu Nidal. 13 The Tribunal considered that there was a real chance, on the basis of the evidence before it, that the applicant would be prosecuted and penalised for his illegal action in relation to his compulsory military service. However, it did not accept that such prosecution or the penalties that might ensue would be for a Convention reason. There was no evidence that the prosecution in the applicant's case would be other than the result of a law of general application. The Tribunal was not satisfied that there is a real chance that the applicant would be persecuted for any other Convention reason. 14 The applicant claimed that he feared persecution because of his membership of a political social group, being his family. The Tribunal concluded that, if the authorities had had an interest in the applicant because his father and brother were connected with Abu Nidal, they would have questioned him in the period of some 10 to 15 years that he lived in Syria following the deaths of his father and brother. 15 The Tribunal was not satisfied that there was a real chance that the applicant would incur a penalty for keeping what appeared to be an unauthorised weapon, in the absence of any other offence relating to political involvement. Even if a penalty were to be imposed, which the Tribunal considers highly unlikely, it would be for breaking a criminal law and therefore outside the scope of the Convention. 16 It then considered the evidence relating to illegal departure from Syria and the seeking asylum in another country. The applicant did not claim that he left Syria illegally, although it would appear that some penalty might be imposed if he did leave Syria illegally. In any event, the Tribunal concluded that if any person leaving Syria illegally would be liable to a penalty, there was no evidence that any such penalty that might be imposed on the applicant would be imposed for a Convention reason. 17 The Tribunal then dealt with the question of an unsuccessful asylum seeker and said as follows: "The evidence in relation to failed asylum-seekers is similarly inconclusive, though it would appear to be dependent on factors which caused the asylum-seeker to leave the country (page 21). Given that the Tribunal has not accepted that the applicant is at risk with the Syrian authorities for any Convention reason, the Tribunal is satisfied that any questioning to which the applicant might be subjected on his return to Syria would not result in his being treated more harshly for any Convention reason. Such questioning would presumably uncover the fact that he was the subject of an Administrative Decision in relation to his military service obligations, but the Tribunal has found that any penalty incurred because of this would be as a result of a law of general application." The Tribunal concluded that it was not satisfied that the applicant had a well founded fear of Convention-based persecution if he returned to Syria in the foreseeable future. 18 The passage that I have just quoted is at the heart of the applicant's complaint in this proceeding. The Tribunal's conclusions in that passage are clearly based on reports from the Department of Foreign Affairs and Trade ("DFAT"), cited in the Tribunal's reasons under the heading "CLAIMS AND EVIDENCE". The Tribunal cited the following extracts: DFAT Report of 19 September 1997: "We have no reason to believe that applying for a Protection Visa would in itself be cause for harm from the Syrian authorities. The actions of the Syrian authorities are far more likely to depend on the factors which presumably led the applicant to flee Syria initially. A possible exception might be if the applicant were a senior government or military official who wanted to defect." DFAT Report of 13 August 2000: "It is unlikely that Syria would admit an undocumented Palestinian refugee. If his UNRWA registration could be confirmed readmittance might be possible. However, given a possible illegal departure from Syria and if the circumstances of previous arrests were as described he would most likely face some form of mistreatment or detention on return to Syria." DFAT Report of 27 September 2000: "Palestinians, or anybody for that matter, who departed Syria illegally would be likely to be penalised on return to Syria. We have sought advice from contacts in Syria on likely penalty [no further advice received to date]… Syrians would most likely facilitate re-entry of/issue travel document to a UNRWA-registered Palestinian who left Syria legally. We have sought further evidence on this question from contact in Syria [no further advice to date]… On return to Syria, Syrian born Palestinians who sought protection in another country may not be of particular interest but by virtue of their actions might be regarded as having made negative claims or statements against Syria which could attract local attention." 19 In his amended application, the applicant relies on the ground of review in section 476(1)(e) of the Migration Act 1958 (Cth) ("the Act") Act that the decision of the Tribunal 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 Tribunal. The applicant contends that the Tribunal's conclusion that the applicant did not have a well-founded fear of Convention-based persecution because of his departure from Syria and his seeking of asylum in Australia indicated that the Tribunal incorrectly interpreted or applied the law. 20 The applicant's argument proceeded as follows: · the Tribunal found that the evidence about whether failed asylum seekers who returned to Syria would be persecuted was inconclusive; · the Tribunal appeared to accept that widespread practices of arbitrary arrest, detention and torture in detention occurred in Syria; · Australia has protection obligations to a non-citizen who has a well-founded fear of persecution for a Convention reason if the person were to return to his or her country of origin; · a non-citizen will have a well-founded fear of persecution if there is a real chance of persecution, in the sense of a possibility that is not remote, insubstantial or far-fetched; · given the findings made by the Tribunal, it could not, if it correctly interpreted or applied the applicable law, have been satisfied that the applicant was a person to whom Australia did not owe protection obligations; · the Tribunal ought to have found that, as the evidence of the treatment of failed asylum seekers was inconclusive, there was a real chance of persecution for the Convention reason of imputed political opinion. 21 The applicant contended that, if the law was correctly interpreted, and applied to the facts found by the Tribunal concerning widespread practices of arbitrary arrest, detention and torture in detention, then, having regard to the inconclusivity of the evidence concerning failed asylum seekers, the Tribunal could not have reached the conclusion that "any questioning to which the applicant might be subjected to on his return to Syria would not result in his being treated more harshly for any Convention reason". That conclusion was said to demonstrate that the Tribunal must have failed, either to interpret the law correctly, or to correctly apply the law to the facts as found. On the basis of its findings, the Tribunal could not have found that there was not a real chance of persecution by reason of the imputation of political opinion by reason of the applicant's departure from Syria and claim for asylum in Australia, if it correctly interpreted and applied the law. 22 At the beginning of its reasons, the Tribunal referred to the relevant provisions of the Convention and to the four key elements involved in the notion of a refugee, citing Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559. Those four elements are: · an applicant must be outside his or her country; · an applicant must fear persecution; · the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition; · an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. It is the interpretation or application of the last element that is in issue. 23 In its reasons, the Tribunal correctly explained what is meant by the fourth element as follows: "This [element] adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well‑founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent." 24 The applicant does not quarrel with that statement of the applicable law. His complaint is that, notwithstanding that statement, the conclusion of the Tribunal nevertheless indicates that it did not properly understand the law or, alternatively, that it misapplied it to the facts as found. The applicant contended that the conclusion displays a misunderstanding of the concept of a real chance, having regard to the Tribunal's conclusion that the evidence in relation to failed asylum seekers was, as the Tribunal put it, "inconclusive". 25 The language in the extract quoted is clearly reminiscent of the DFAT report of 19 September 1997. The Tribunal's reasoning in the critical passage is clearly enough based on that report. The report of 27 September 1997 appears on pages 21-22 of the Tribunal's reasons, yet The Tribunal appears to have placed little or no weight on the report of 27 September 2000. 26 Under s 65 of the Act, where a valid application for a visa has been made, the Minister is to grant the visa if satisfied, inter alia, that the criteria for it prescribed by the Act or Regulations have been satisfied. If the Minister is not so satisfied, the Minister is to refuse to grant the visa. The Tribunal, in a review of the decision of a delegate of the Minister, exercises the functions of the Minister. The question in a review by the Tribunal, therefore, is whether or not the Tribunal is satisfied that the prescribed criteria for the grant of a protection visa have been satisfied. The relevant criterion is whether the applicant is a refugee within the meaning of the Convention. 27 In the critical passage that I have quoted, the Tribunal said that it was satisfied that any questioning to which the applicant might be subjected would not result in any harsher treatment for any Convention reason. That is tantamount to a statement that it was satisfied that there would no persecution of the applicant for any Convention reason. The reasoning that led to that conclusion might be summarised as follows: · The evidence as to how failed asylum seekers would be dealt with by Syria is inconclusive. · However, the way in which Syria deals with failed asylum seekers depends on the factors that cause the asylum seeker to leave the country. · The applicant is not at risk with the Syrian authorities for any Convention reason. · Accordingly, the treatment of the applicant upon his return would not be harsher than anyone else for any Convention reason. 28 While the Tribunal considered that the evidence in relation to failed asylum seekers was inconclusive, it was satisfied that the attitude of Syria to a returning failed asylum seeker would depend upon the factors that caused the asylum seeker to leave Syria. Since the Tribunal did not accept that the applicant was at risk with the Syrian authorities for any Convention reason, the factors that caused the applicant to leave Syria were not Convention reason based. Accordingly the only detriment to which the applicant would be subjected would relate to matters that were not Convention reasons but possible offences arising under laws of general application. 29 There is nothing in the Tribunal's reasoning to suggest that it was mistaken concerning the concept of a real chance of persecution such as to give rise to a well-founded fear of persecution. It could be that the Tribunal's conclusion involves an erroneous finding or is mistaken. However, that of itself is not sufficient to attract section 476(1)(e) – see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at paragraphs 82 and 84. 30 Section 476(1)(e) would, of course, apply where an erroneous finding was made or a mistaken conclusion was reached as a consequence of an incorrect interpretation of the applicable law or the incorrect application of the applicable law to the facts as found. Against the possibility that the Court might be of a different view, the application to the Court was amended to rely also on s 476(1)(b). Having regard to the view that I take concerning section 476(1)(e), the question of s 476(1)(b) does not arise. 31 The mere fact that an erroneous finding has been made or a mistaken conclusion has been reached does not, without something more, signify that there has been an incorrect interpretation or application of the applicable law. I do not consider that there is anything in the reasoning of the Tribunal in the critical passage to indicate that the Tribunal misunderstood the concept of "a real chance", notwithstanding its observation that the evidence concerning the treatment of a failed asylum seeker was inconclusive. The Tribunal accepted that the treatment would depend upon factors that caused the asylum seeker to leave. 32 The evidence was inconclusive as to precisely what factors would be significant. The Tribunal concluded, however, that the mere making of an application for asylum was not a factor that would give rise to an imputation of a political opinion that would give rise to persecution. In the critical passage, the Tribunal makes no reference to the DFAT report of 27 September 2000. That report suggests that local attention might be attracted if, by virtue of their actions, the failed asylum seeker might be regarded as having made negative claims or statements against Syria. The Tribunal made no findings that the applicant's actions in applying for a protection visa in Australia might be so regarded. 33 The failure to do so, however, is not a ground of complaint by the applicant. The failure to do so does not, of itself, indicate an incorrect interpretation or application of the applicable law. In my opinion the applicant has not established a ground within section 476(1)(e) of the Act. Accordingly, in my view, the application should be dismissed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 12 September 2001 Counsel for the Applicant: Mr M Ritter Counsel for the Respondent: Australian Government Solicitor Solicitor for the Respondent: Mr A A Jenshel Date of Hearing: 2 August 2001 Date of Judgment: 3 August 2001