W395 v Minister for Immigration & Multicultural Affairs [2001] FCA 1737

FEDERAL COURT OF AUSTRALIA

W395 v Minister for Immigration & Multicultural Affairs [2001] FCA 1737

Migration - judicial review - Refugee Review Tribunal - stateless Palestinian - country of habitual residence Syria - no well-founded fear of persecution - no ground for review of Tribunal decision - application dismissed

W395 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W395 OF 2001 FRENCH J 9 NOVEMBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W395 OF 2001

BETWEEN: W395

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 9 NOVEMBER 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The Applicant is to pay the respondent's costs of the 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 W395 OF 2001

BETWEEN: W395

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 9 NOVEMBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant is a stateless Palestinian aged 31 years. He is a single man who has no children. He is a Muslim. He arrived in Australia without any travel documents on 2 November 2000. He came by boat from Indonesia. He applied to the Department of Immigration and Multicultural Affairs for a protection visa on 14 November 2000. His application was refused by a decision of the delegate of the Minister for Immigration and Multicultural Affairs on 30 January 2001. 2 On 2 February 2001, he applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision. On 10 August 2001, the Tribunal affirmed the delegate's decision not to grant a protection visa. By an application which was filed in this Court on 28 August 2001, the applicant seeks review of the Tribunal's decision. In its reasons for decision, the Tribunal accepted that the applicant was a truthful witness. With two exceptions, it accepted his evidence as a whole. Its findings of fact are set out in its reasons for decision. 3 The applicant, it found, was born in Jordan in August 1969. In September 1970, his parents fled with the applicant and his two brothers to Syria after a massacre in Jordan. They entered Syria illegally and lived there illegally. His parents remained there for the rest of their lives. The applicant attended school in Syria for nine years. His father was active with the Al-Fatah organisation until 1983. 4 In 1987, aged about 18 years, the applicant joined the Abu Nidal group. He entered Libya legally for that purpose. He underwent basic training with the Abu Nidal organisation in 1987 and 1988. However, in 1989 he stopped the training work at the camp and decided to work as a self-employed roofing contractor. In the meantime, in 1986, Syria had asked the Palestinian Liberation Organisation ("PLO") and the Abu Nidal group to leave Syria. In the late 1980's Syrian intelligence officers went to the applicant's parents in Syria asking where he was. His two brothers are deceased. They were with the PLO and died in 1976 and 1979. The applicant's mother died in Syria in 1985 and his father died there in 1990. In 1999, the Libyans began expelling Palestinians and the applicant decided to leave and go to Lebanon. He bought a Lebanese/Palestinian travel document in a false name in Libya. He used that document to go to Lebanon. In Lebanon he joined the PLO. He did this because he heard that members of the PLO were being allowed to go back to the Gaza Strip. He described himself as a PLO soldier. He worked as a guard for the officer in command of the N Rashida Refugee Camp at Soor in Lebanon. However, in May 1999, he was assaulted by the officer when he fell asleep while on guard duty. As a result of the assault he suffered a serious leg injury. 5 He decided to leave Lebanon. He wanted to find another country where he could live in peace and did not think there was any such country in the Arab world. He was not registered with the UNRWA and his parents and brothers had not been registered with UNRWA. He travelled to Syria in January 2000. He went there to visit his parents' graves before he left the Middle-East altogether. After visiting the graves of his parents and still using his false Lebanese/Palestinian document, he left Syria on 13 February and travelled to Indonesia. 6 In Indonesia he paid a people smuggler $US2,000. He did undertake some processing under a false name with the United Nations High Commissioner for Refugees. He had been arrested by Indonesian police while waiting on a beach to board the ship that was to take him to Australia. In October 2000, UNHCR were prepared to give him UNRWA registration. However, they were not sure that he had a well-founded fear of persecution in Syria. He was never actually registered with UNRWA. 7 The applicant did not wait for a decision by the UNHCR. He was afraid of being sent back to the Middle-East. He was determined to reach Australia. He paid more money to a second smuggler. He left Indonesia on 23 October and arrived in Australia on 2 November 2000. He did not have any right of residency in Libya. He has no right to return to Jordan. He has no travel documents and would not get a visa for Jordan because the Jordanians do not want Palestinians. 8 The Tribunal referred in some detail to evidence that the applicant gave at the Tribunal hearing. It also had regard to independent information about Syria and its attitude to Palestinian people. In its findings and reasons it accepted that the applicant is a stateless Palestinian. It first considered whether the applicant had a country of former habitual residence within the meaning of the Refugees Convention. It set out a list of considerations relevant to deciding whether or not there was a country in which he had habitually resided. It observed that the purpose of the Refugees Convention is to treat persons seeking refugee status the same whether they have nationality or whether they have a country of habitual residence from which they have come. It observed that the applicant claimed he had no right of return to Syria. It also observed that there was some support for this view because independent evidence indicates that Syria restricts the entry of non-resident Palestinians. Whether the applicant would be admitted to Syria was questionable. The Tribunal found that there was very little likelihood that the applicant would be allowed to go back and live in Libya, and that finding is not challenged. 9 The Tribunal found that Syria is the country of former habitual residence of the applicant. In making that finding, it mistakenly said that the applicant was born in Syria. This was a slip, because the Tribunal had previously found that the applicant was born in Jordan. It was a factual error which was not critical in the decision and does not provide a ground for review. 10 The Tribunal found that the applicant had been raised and educated in Syria. There was no evidence to suggest he would have been expelled if he had decided to stay in Syria. He would have had a degree of security there. In addition, he had some emotional attachment to Syria. Finally, it was in Syria that he said he would fear persecution. 11 The Tribunal then looked at the question of whether or not there was any risk of persecution if he were returned to Syria. It reviewed his history of involvement with the Abu Nidal group in the eighties and it concluded that the chance that he would be of any interest to the Syrian authorities was very small. It wasn't satisfied that his fears of persecution were well-founded and if he were to be refused entry to Syria it wouldn't be for a Convention reason. 12 In his submissions, the applicant drew attention to his illegal residence in Syria. He said he didn't have any kind of travel document which would permit him to stay there. He referred to the fact that his family had left Jordan in 1970 and that the Jordanian authorities would not let them return to Jordan. He said he has lost all his rights and does not have protection from UNRWA. It was impossible for him to leave Syria in a legal way because he didn't have legal documents from the Syrian authorities and Syria would not accept him if he went back because he is a person without any legal documents and a Palestinian without nationality or passport. 13 As I pointed out to the applicant, the Court cannot interfere with the findings of fact of the Tribunal. I am not satisfied that there has been any error of law on the part of the Tribunal in coming to the decision and if Syria were not to let the applicant return, that would not make him a refugee under the Convention. It may be that if that is the case, if Syria does not let him return, he can apply for entry under the humanitarian program or he may be able to get registration with UNRWA which would entitle him to return to Syria. However, those are not matters which the Court has any power to determine. The Court's only legal function here is to decide whether or not the Tribunal was wrong in law or procedure. The application must therefore be dismissed.