FEDERAL COURT OF AUSTRALIA

Al Khateeb v Minister for Immigration & Multicultural Affairs [2001] FCA 1162

migration – application for protection visa – review of decision of Refugee Review Tribunal – applicant a stateless Palestinian living in Syria – Refugee Review Tribunal did not make a finding as to whether applicant secured release from detention by way of a bribe – this may have led to an error of fact in finding that applicant no longer of interest to authorities – no error of law

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to

Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 referred to

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to

Migration Act 1958 (Cth)

ADNAN AL KHATEEB v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 112 OF 2001

HELY J

24 AUGUST 2001

SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Mr Al Khateeb (“the applicant”) is the son of a Palestinian who fled what was then Palestine when the state of Israel was proclaimed in 1948.  The applicant was born in Syria and has lived there all his life, but he does not have citizenship.  He is registered with the United Nations Relief and Works Agency (“UNRWA”) for Palestinians in the Near East but has received no assistance from UNRWA in recent years.

2                     The Minister’s delegate found that the applicant was excluded from consideration under Articles 1D and 1E of the Convention, hence the delegate did not proceed to consider whether the applicant had a well-founded fear of persecution for a Convention reason.  On review, the Refugee Review Tribunal (“RRT”) disagreed with the delegate’s view that the applicant was excluded from consideration under Article 1D or 1E, and proceeded to assess the applicant’s claims in the light of the provisions of the Convention.

3                     RRT accepted that the applicant is a stateless person, hence the issue for its determination was whether the applicant has a well-founded fear of persecution for a Convention reason if returned to Syria, that being his country of former habitual residence.

4                     The applicant claimed he was detained and tortured because he insulted the Syrian leader during an argument with members of the security services in early 1999 and that he left Syria illegally on 26 August 2000.  He feared that he would be detained and tortured if he were to return to Syria because of a political opinion imputed to him as a result of his detention, and because of his Palestinian nationality.  He said that his problem with the Syrian authorities was exacerbated because he is a Palestinian refugee (CB 128).

RRT’s findings

5                     RRT found that:

-           in February 1999, a friend or acquaintance of the applicant insulted the daughter of a military officer in the restaurant where the applicant worked.  This led to the applicant becoming involved in an altercation with Syrian military personnel.  The officers insulted him because he was a Palestinian.  The applicant became frustrated, and insulted the government and President of Syria (CB 141).  The applicant was then detained;

-           Palestinians do not generally face serious discrimination in Syria because of their nationality, nor are they more likely to be viewed as politically suspect than Syrian nationals merely because they are Palestinians (CB 146);

-           the principal reason for the applicant’s arrest and detention was because he was seen as uncooperative and became involved in some kind of a fight with the members of the patrol that came to question him;

-           whilst the applicant’s nationality or political opinion, real or imputed, were not the main reasons for his arrest or detention, they may have been contributing factors.  Hence RRT accepted that he was arrested and detained in 1999 for reasons of nationality and political opinion.

6                     RRT was sceptical of the applicant’s claim that he was detained for a period of 15 months after the altercation which led to his arrest.  The applicant claimed that his father secured his release on 13 May 2000 by paying a bribe.  Whatever the period of detention, RRT found that he was released without charge, and thereafter he was of no further interest to the authorities for reasons of his nationality or his political opinion.

7                     After being released from detention the applicant claimed that he returned to work at the same restaurant until August 2000.  He said that a patrol car came looking for him at the restaurant on one of his days off, but a message was sent to the applicant to warn him that the patrol car was coming (CB 142).  He was afraid of being arrested again and decided to leave the country.  On 23 August 2000 he had his exit visa stamped at Damascus International Airport, and left for Australia via Indonesia.

8                     RRT found that the applicant’s claims regarding what happened to him after his release from detention in May 2000 were not true (CB 147).  The reasons which caused RRT to come to that conclusion were:

-           a person such as the applicant, who had no history of political activity and who had done nothing more than insult the President on one occasion more than twelve months earlier was unlikely to be of continuing interest to the authorities for political reasons in late 2000 or early 2001, having regard to the lessening of repression which was occurring in Syria at about that time;

-           discrepancies in his evidence as to those events;

-                     the fact that the applicant was able to leave Syria legally on a travel document issued in his own name is a strong indication that he was not of interest to the Syrian authorities at the time of his departure.  Whilst he told RRT that he had paid bribes to avoid problems at the airport, this was not mentioned in earlier statements, and RRT did not believe the claim was true.

9                     RRT summarised its findings as follows (CB 148):

“... I am not satisfied that Mr Alkhateeb was of interest to the Syrian authorities for political reasons at the time of his departure from Syria.  Furthermore, I am not satisfied that there is a real chance that he will be persecuted for reasons of his political opinion or a political opinion imputed to him by the Syrian authorities if he returns to Syria now.  He has never been involved in political activities in Syria and there is nothing in the evidence before me which suggests that he would become politically active in future.  While I accept that there was a political element in Mr Alkhateeb’s detention in 1999 caused by the fact that he insulted the Syrian government and President, I do not believe it was the main reason for his arrest and detention, nor that it caused the Syrian authorities to view him as an genuine opponent of the regime and I do not believe that it would cause him problems in Syria now or in the reasonably foreseeable future.

I have also considered Mr Alkhateeb’s claim that he faced problems in Syria because of his Palestinian nationality.  Again, while I accept that the fact that he is Palestinian may have contributed to the exchange of insults and the altercation which led to his arrest in 1999, I do not believe he was arrested or detained because of his Palestinian background.  Furthermore, this is only occasion on which he has experienced problems linked in any way to his nationality and none of the information which I have seen suggests that Palestinians are generally at risk of serious harm amounting to persecution because of their nationality.  In these circumstances, I do not believe that there is a real chance that he will be persecuted in Syria because of his Palestinian nationality.”

Proceedings in this Court

10                  The application for an order of review filed on 17 April 2001 does not specify the grounds on which the application is made.  The applicant asserts that he is aggrieved by RRT’s decision because: “I am Palestinian stateless and I think that the Tribunal didn’t consider my case”.  A direction given on 8 May 2001 that the applicant should file and serve on or before 12 June 2001 a written statement setting out the reasons why he considers RRT’s decision is wrong was not complied with.  Mr Heenan QC appeared for the applicant in the hearing and prepared a comprehensive outline of the applicant’s submissions.  It was accepted by the respondent’s counsel that this should stand as the written statement required by the direction.

Grounds of review

11                  Mr Heenan QC submitted that RRT failed to make findings with respect to the following:

(a)                the nature and condition of the applicant’s imprisonment in Syria from February 1999 to March 2000;

(b)               there was unchallenged evidence that the applicant’s release from prison was secured by the payment of 200,000 Syrian Lire by his father to the Syrian military officials in circumstances where no charges had been laid and a regime of indefinite and unauthorised detention is commonplace;

(c)                notwithstanding his release, the Syrian military authorities began making enquiries in an evident attempt to locate the applicant at the restaurant shortly after his release;

(d)               as a result of the enquiries by the Syrian military authorities at the restaurant after his release the applicant fled to the countryside where he remained undetected for several months;

(e)                it was commonplace for bribes to be paid to secure the safe and “legal” exit of persons who may be wanted by the authorities, and that the applicant claimed that a bribe of this kind was paid to secure his exit from Syria.

In Mr Heenan’s submission, the fact that these issues were not addressed by RRT, although evidence of them was before RRT, reveals that errors of law have been made by way of omission in failing to consider whether or not such facts, if they be accepted, constitute grounds for a well-founded fear of persecution, and that RRT has failed fully to exercise its jurisdiction.

12                  Grounds (c), (d) and (e) can be shortly disposed of.  As to (c) and (d), RRT found that:

-                     the applicant was of no further interest to the authorities for reasons of his nationality or his political opinion on his release from prison without charge (CB 146);

-                     the applicant’s claims regarding the period after his release from detention in May 2000 were not true (CB 147).

As to (e), RRT found that it did not believe the applicant’s claim that he paid a bribe to avoid problems at the airport (CB 148).  In the light of that finding, whether or not it was commonplace to pay bribes to secure the safe and “legal” exit of persons who might be wanted by the authorities is beside the point.

13                  So far as (a) and (b) are concerned, RRT accepted that the applicant was arrested in 1999 and that his nationality or political opinion, real or imputed, whilst not the main reasons for his arrest or detention, were contributing factors.  In the applicant’s submission, what RRT’s analysis lacks is an appreciation that the long detention, harsh treatment including beatings and release under questionable circumstances, was the typical response of the ruling authorities to actual or suspected political affiliation or national or ethnic membership.  Such attributions remain significant in determining the level of risk of similar repercussions if the applicant were to be returned to Syria.

14                  In the context of the present case, the issue which RRT was required to address can be stated in the following way: at the time of RRT’s determination of the matter was there a real chance that the applicant would be harmed by the authorities by reason of his nationality or political opinion (actual or imputed) if he were to return to Syria.  RRT addressed that question and answered it unfavourably to the applicant.  RRT found that the applicant was not a person who was of any interest to the authorities.

15                  Mr Heenan QC submitted, and it was really his main point, that whether or not the applicant secured his release from prison by means of a bribe was critical to the question of whether the applicant was likely to be of continuing interest to the authorities notwithstanding his release, and although RRT adverted to the evidence on this topic at CB 143, it did not make a finding as to whether or not release was procured by means of a bribe.

16                  It is right to say that RRT did not make a specific finding on that issue.  But, putting the matter at its highest from the applicant’s point of view, that only means that RRT may have made a wrong finding of fact in concluding that the applicant was of no interest to the authorities after his release from prison, if in coming to that conclusion RRT failed to take into account the evidence as to the bribe.

17                  In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [74] McHugh, Gummow and Hayne JJ said:

“This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration.  It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker.  What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

18                  It is not an error of law, within the grounds of review set out in s 476 of the Act, that conclusions of fact drawn by RRT are unreasonable or may seem to be unreasonable to another, or that other minds would not have reached the same conclusion: Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48.  In Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 there had been criticisms made in theFederal Court that RRT had failed to examine a number of factual matters.  Gleeson CJ and McHugh JJ at [54] said that there may or may not be valid criticisms of RRT, but what emerged was nothing more than a number of reasons for disagreeing with RRT’s view of the merits of the case.  The merits were for RRT to determine, not for the Federal Court.

19                  Mr Heenan QC also submitted that RRT’s reasons do not deal with the issue of what constitutes a “real chance” of persecution.  At CB 132, when considering the definition of a refugee, RRT noted that to be a refugee, an applicant must have a subjective fear of persecution: “and there must also be a real chance that they will be persecuted”.  At CB 148 RRT said that it was not satisfied that there is a real chance that the applicant would be persecuted in Syria for reason of his actual or imputed political opinion, or because of his Palestinian nationality.

20                  I agree with Mr Heenan’s submission that it is vital not to conflate the real chance test with a conscious or unconscious adoption of an alternative that there must be a risk of persecution shown on the probabilities because that would involve an incorrect and more onerous test.  But I am unable to detect any signs that RRT fell into this error.  The applicant’s claim failed because of RRT’s finding that the applicant was not a person who was of any interest to the authorities for either of the reasons claimed.

Conclusion

21                  The application should be dismissed with costs.

Associate:

Dated:              24 August 2001