Applicant H v Minister for Immigration & Multicultural Affairs [2001] FCA 1511

FEDERAL COURT OF AUSTRALIA

Applicant H v Minister for Immigration & Multicultural Affairs

[2001] FCA 1511

APPLICANT H v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 218 of 2001 CARR J 25 OCTOBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W218 OF 2001

BETWEEN: APPLICANT H

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 25 OCTOBER 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 W218 OF 2001

BETWEEN: APPLICANT H

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE: 25 OCTOBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 30 May 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a citizen of Syria, arrived in Australia illegally in August 2000. On 7 March 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act"). On 27 April 2001 a delegate of the respondent refused to grant a protection visa and on 1 May 2001 the applicant applied for review of that decision.

the applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary, were as follows: · He was born in Syria and was 26 years of age at the time of the Tribunal's decision. · He had lived in Syria all of his life except for a three year period spent in Lebanon on military service. · He was born into a Christian family and continued to follow that religion. Due to his religion he suffered a lot of harassment by the Muslim community including mistreatment at school, and during his military service. · In June 1999 he opened a profitable liquor shop in a Muslim Sunni community in the city of Homs. Local Muslims complained to him, raided and ransacked his shop and seriously injured him which resulted in hospital treatment. His complaints to the police came to nothing so he decided to leave Homs and go to the village of Sadad. · In about September 1999 the applicant began operating a poultry farm selling chickens and eggs and life went on as normal until June 2000. · He was involved in an incident after work on 17 June 2000 when he asked a fellow worker to turn down a television broadcast about the President of Syria. The applicant had said "it is nothing to do with us" and had switched off the television set. The applicant believed that this person later reported him to the authorities for abusing the President. · The next day the applicant went to the neighbouring communities to sell eggs as was normal. Upon return to the farm he noticed that there was nobody there. The applicant asked what had happened and was told that intelligence agents had arrested everyone. The applicant went home and told his father who told the applicant that intelligence officers had also been to their home searching for the applicant. · The applicant's partner, who knew a Christian person in the intelligence office, made inquiries and was told that the applicant had been reported to the authorities because he abused and attacked the President verbally. · On learning this the applicant immediately departed and stayed with a friend. · The applicant decided to leave Syria. On arrival in Damascus he contacted a friend in the Security Department who told him that his (the applicant's) name was on lists at all the border check points and that there was no way he could leave the country because he was accused of a political offence. He was advised that the only way out of the country was as a member of a Palestinian organisation and then it would be possible to go to Lebanon without any problems. · The applicant contacted a Palestinian friend who took him to his house and arranged an identity card for membership of the Palestinian Popular Liberation Front General Command. The applicant paid 10,000 Syrian pounds for that identity card. His friend found him a way to travel to Australia via Indonesia using a false Palestinian travel document. · The applicant said that he left Syria via Damascus airport by paying a substantial bribe. · He fears imprisonment upon return to Syria. 3 Rather than attempt to summarise the Tribunal's findings and reasons, I set them out below in full. I have added numbers to the paragraphs to facilitate the references which I make later in these reasons. "DISCUSSION OF EVIDENCE AND FINDINGS 1. The Tribunal accepts that the applicant is Christian. It notes his evidence that he does not practise his religion and that he has not faced problems at the hands of the authorities by reason of his religion. While accepting that he was occasionally harassed and abused at school and in the military the Tribunal finds that the treatment of the applicant falls short of a definition of persecution. The Tribunal notes that the applicant completed his military service almost five years ago. It also notes and gives weight to country information cited below indicating that the Christians are free to practise their faith in Syria and that occasional discrimination against Christians by some Muslim citizens is not supported by the State. 2. A cablegram from the Australian Department of Foreign Affairs and Trade (DFAT), DM1O52 of 24 April 1994, remarks, for example, that: "... Christians in Syria, whether Assyrian, Greek Orthodox or other varieties, are not/not victimised and are protected by the State. Discrimination by the Muslim majority does occur, but is generally on a social level and is in no sense officially condoned or encouraged..." 3. The United States of America (USA) Department of State, Country Report on Human Rights Conditions, 2000, notes in relation to Syria that: "The Constitution provides for freedom of religion, and the Government generally respects this right in practice; however, it imposes restrictions in some areas. The only advantage given to a particular religion by the Constitution is the requirement that the President be a Muslim. There is no official state religion; Sunni Muslims constitute the majority of the population. All religions and orders must register with the Government, which monitors fund raising and requires permits for all meetings by religious groups, except for worship. Recognized religious groups receive free utilities and are exempt from real estate taxes and taxes on official vehicles. There is a strict de facto separation of church and state. Religious groups tend to avoid any involvement in internal political affairs. The Government, in turn, generally refrains from becoming involved in strictly religious issues... Officially all schools are government-run and nonsectarian, although some schools are run in practice by Christian, Druze, and Jewish minorities. There is mandatory religious instruction in schools, with government-approved teachers and curriculums. Religion courses are divided into separate classes for Muslim, Druze, and Christian students... Religious groups are subject to their respective religious laws on marriage, divorce, child custody, and inheritance..." 4. In considering all the available evidence the Tribunal finds that the applicant does not face a real chance of persecution by reason of his religion. 5. The Tribunal accepts that the applicant operated a liquor store for a while during 1999. It notes that the store operated profitably, at least for some of the time it was open, in a Sunni Muslim area. 6. In relation to the distribution and use of alcohol in Syria the Tribunal notes the following report of DFA T in Country Information Report, 126/01 of 30 April 2001: "a. Alcohol is produced in various forms in Syria and is available in most parts of the country, although more obviously in the larger centres. Alcohol is more visibly sold in the Arab-Christian neighbourhoods, and also in the Sunni Muslim areas (as they are known to consume alcohol). It is considered that there would be problems for a store-owner if the store was directly in front of a mosque. a.2 An individual's religion would not affect the right to sell alcohol, though there is a "business turf", issue, that would require connections and kickbacks to get a licence in the first instance. a.3 The threats are more likely to come from business competitors. which may have the protection of the police. The police are also attempting to crack down on illegal smuggling of alcohol, mainly from Lebanon." 7. The applicant conceded that his store operated legitimately. It is apparent from aforementioned country information that the sale and use of alcohol is widespread in Syria and officially sanctioned. 8. The applicant made no claim of any violence being visited upon him at his liquor store in the initial stage of his application for asylum. While accepting that he might have received advice from a people smuggler as to what were considered the best claims to make in seeking asylum (and, therefore, told untruths about his origins) the Tribunal rejects his explanation that he omitted any reference at all to an alleged vicious attack on him by a group of local Muslims because he was strictly following the smuggler's advice and, consequently, made no allusion to aforementioned serious harm that he now claims he encountered. The Tribunal concludes that the applicant's claim of an attack on him at his liquor store is a fabrication in order to bolster his prospect of being declared a refugee. 9. Country information cited above indicates that there are often territorial disputes regarding the sale of liquor. Whether or not the applicant faced such a problem, the fact that his store was in an area occupied mostly by Sunni Muslims who are known to use liquor, and that some of his alleged attackers were regular customers, indicates that to the extent he might have faced any problems they did not arise for religious or political reasons, or for any other Convention-related ground, and the Tribunal finds accordingly. 10. While accepting that the applicant might have been queried as to the location of his liquor store and that he was threatened with a prospect of police charges when they found illicit goods on his premises such action does not disclose a Convention ground. Even if the applicant were to have been charged with holding or receiving goods to which he was not legally entitled that action and any ensuing penalty would be in accordance with a law of general application, and the Tribunal finds accordingly. 11. With regard to the applicant's claims concerning the incident with a farm colleague and of consequent problems the Tribunal makes the following observations. 12. The applicant's evidence is that while watching television coverage at his farm of a conference, in the company of two colleagues with whom he was on friendly terms, he made some derogatory remarks about the then Syrian president and his son before switching off the television set, and that one of his colleagues with whom he argued promptly reported him to the Syrian authorities. He does not know why such a relatively minor incident would have been reported, although he speculated at the hearing that his colleague might have been a government spy. It is apparent that such a report would have placed the farm-worker's job in jeopardy through retaliatory action by the applicant or family members. Despite the authorities allegedly searching for the applicant soon after the aforementioned incident, and detaining some of his colleagues to assist with the search, they were unable to locate him even though he was still at that time in the immediate area going about his normal business. Notwithstanding the alleged seriousness of the matter the authorities apparently made public their reasons for seeking the applicant, such that he was informed both of their search for him and why they wanted to apprehend him. 13. In weighing the evidence before it the Tribunal is not satisfied that a colleague with whom the applicant was on generally favourable terms would report an apparently minor incident or that the authorities would seek to persecute the applicant as a consequence. In that regard the Tribunal notes and gives weight to information indicating growing political liberalization in Syria. 14. The USA report (op. cit.) remarks in relation to Syria that: "The Constitution provides for right to express opinions freely in speech and in writing, but the Government restricts these rights significantly in practice. The Government strictly controls the dissemination of information and permits no written or oral criticism of the President, the President's family, the Ba'th Party, the military, or the legitimacy of the regime. The Government also does not permit sectarian issues to be raised. Detention and beatings for individual expressions of opinion that violate these unwritten rules sometimes occur, although not as frequently as in the past... Recent trends toward a modest relaxation of censorship increased during the year. In his July inaugural speech, President Bashar Al-Asad emphasized the principle of media transparency. Since July both the print and electronic media at times have been critical of Ba'th Party and government performance and have reported openly on a range of social and economic issues. While this relaxation of censorship did not extend to domestic politics or foreign policy issues, it was a notable departure from past practice. Damascus-based correspondents for regional Arab media also were able to file reports on internal political issues, such as rumored governmental changes, new political discussion groups, and the possible introduction of new parties to the Ba'th Party-dominated National Progressive Front. In November the Ba'th Party Regional Command voted to amend the press law to allow constituent parties of the National Progressive Front to publish newspapers and to open party headquarters. In November the Prime Minister rescinded a 1986 ban on the printing of publications by public institutions without prior approval from the Prime Minister. A group of 99 Syrian intellectuals published a petition in a Lebanese newspaper in September calling for lifting martial law, ending the state of emergency in effect since 1963, releasing political prisoners, and expanding civil liberties in accordance with the provisions of the Constitution. The Government did not respond directly to the petition by year's end; however, the Government did take several of the steps called for in the petition (see Section 1.d.). The Government did not take action against any of the intellectuals who signed the petition by year's end..." 15. The material cited immediately above is echoed in some other contemporaneous reports. It is observed, for example, in The Middle East International, No.632 of 1 September 2000, that a" former MP, trade unionist and outspoken government critic" had been appointed as the "editor-in-chief of al-Thawra" as part of a gradual process of political reform. 16. In particular, the climate of political liberalization and reports of inaction against some trenchant critics of government policy, and the elevation of certain other prominent critics to positions that allow for further public criticism, lead the Tribunal to find that the applicant has fabricated his claim of being pursued by the authorities for much less significant and essentially private criticism that he might have made of the Syrian leadership. Similarly, the Tribunal does not accept that a friend of the applicant was persecuted for alleged criticism of the Syrian leadership that was in any way commensurate with the criticism the applicant claims to have made himself. 17. In assessing the material before it the Tribunal also notes that, if the Syrian authorities seriously sought the applicant, they had ample opportunity to take effective action against him prior to his move to Damascus. Although the applicant now claims that he left Syria on false documentation his Syrian passport was not revoked, or confiscated, until some considerable time after his alleged political offence and after he departed Syria. 18. On the question of departure from Syria the Tribunal notes the following advice from the DFAT, relying on information furnished by UNHCR, in its Country Information, Report 447/99 of 20 December 1999 that: "If a person wants to leave, (s)he should first obtain an exit permit from the passport and immigration office in order to check the past records. ..." [CX39012] 19. Thus, an exit stamp is required before going to the airport. The DFAT post in Damascus in its Country Information Report No. 237/97 of 28 May 1997 remarks as to the method for obtaining an exit permit: "A2. Political or character vetting as such is not carried out prior to the issue of an exit permit. As far as we can see, an exit visa will be issued unless the applicant is wanted or under surveillance by the police or security services. That is, the act of applying for an exit visa would not be cause for a vetting or investigative procedure, unless the Applicant was already under investigation. A.3 As above. If an applicant for an exit visa was the subject of police or security service interest, the visa could be refused. Actual or imputed political profile is one, but not the only, way of attracting such interest. Other ways include actual or suspected criminal activity, business activities in competition with the 'wrong' (i.e. influential) people, or personal or business disputes with members of the police or security services. A4. ...Bribing officials is a widespread means of expediting even legal, routine procedures in Syria. For illegal, less routine matters, such as issuing false documents, the prices are much higher, the number of officials willing to accept bribes much smaller, and the risks to all parties significantly higher." [CX22779] 20. The same DFAT post reported on 18 April 1996 in its Country Information Report 380/96 that: "A Syrian government official with direct knowledge of the issue has informed us that the following procedures apply for acquisition of an exit visa: Anyone wishing to travel must first acquire a passport. If male, the person must attend the office of the local army authority ... located in his place of birth and apply for approval to acquire a passport. ... An application for approval to acquire an exit visa is lodged with the army office which then forwards it to the responsible military intelligence office (according to whether the person served in the airforce, army or navy) for approval. The responsible military intelligence office may then issue an approval to acquire a passport ... valid for one year. The army office keeps this approval and issues the applicant with an approval to obtain a passport ... only valid for one month. Once this approval is obtained, the person must go to the office of immigration and passports within one month and lodge an application (with photographs) to obtain a passport... In regard to exit visas, each time a male person wishes to travel, he must apply through the local army office for approval to obtain an exit visa. ... the local Army office forwards the application to the appropriate military intelligence office. Military intelligence may issue an approval, valid for one year, to acquire an exit visa. The local army office retains this approval and issues an approval valid for either one month or one year (depending on the reason and the timetable for travel) to acquire an exit visa. ... The person then goes to the office of immigration and passports to get the exit visa." 21. In light of the number of checks regarding persons wishing to depart Syria and the process involved in obtaining necessary documentation for travel the Tribunal concludes that the applicant was able to leave Syria because he was not wanted by the authorities in relation to any Convention ground. In weighing the material before it the Tribunal does not accept that the applicant left Syria illegally or that his departure was made possible only by the payment of bribes and arrangements made by people smugglers. 22. In assessing whether the applicant has become a refugee sur place the Tribunal has considered whether he might face a real chance of persecution as a result of having applied to be declared a refugee in Australia. DFAT remarked in 1997 that: "We have no reason to believe that applying for a protection visa would in itself be cause for harm from the Syrian authorities. ... A possible exception might be if the Applicant were a senior government or military official who wanted to defect" [Cisnet CX25585, 19 September 1997]. 23. The UNHCR has provided the following advice to the Canadian authorities: "Unsuccessful Syrian asylum seekers who left their country illegally will be in principle sentenced to three months of imprisonment and to payment of a fine ranging from 500 to 1500 Syrian pounds. Unsuccessful Syrian asylum seekers who left their country legally should not fear any prosecution if their asylum procedure was kept totally confidential" [Refinfo SYR20080. E, 4 April 1995]. 24. More recently, Departmental officials met with the Syrian head of Immigration in the Interior Ministry and were informed that "all Syrian nationals who are currently unlawfully in Australia will be allowed to return to Syria without question" [CX49584, 14 March 2000]. Their return is subject to confirmation of relevant biographical data. The Tribunal gives weight to the fact that an application for a protection visa is made in confidence. Aforementioned information indicates that even if such an application were to become known to the Syrian authorities, the applicant would not face a real chance of persecution by reason of his political opinion or for any other Convention reason. In view of the applicant's actual profile, and bearing in mind the finding concerning the nature of his departure and aforementioned country information, the Tribunal concludes that he would not face persecution even if his application for asylum were to become known to the Syrian authorities . 25. In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not face a real chance of persecution for any Convention reason.