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Cases

MIGRATION - judicial review - refugee status - stateless Palestinian - no error of law - no question of principle.

Loubany v Minister for Immigration & Multicultural Affairs [2002] FCAFC 29

Loubany v Minister for Immigration & Multicultural Affairs [2002] FCAFC 29 (22 February 2002); [2002] FCA 152
Last Updated: 6 May 2002


Loubany v Minister for Immigration & Multicultural Affairs [2002] FCAFC 29
Loubany v Minister for Immigration & Multicultural Affairs [2002] FCA 152



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Loubany v Minister for Immigration & Multicultural Affairs

[2002] FCA 152


MIGRATION - judicial review - refugee status - stateless Palestinian - no error of law - no question of principle.

MOHAMMAD LOUBANY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W439 OF 2001

FRENCH, COOPER AND NICHOLSON JJ

PERTH

22 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W439 OF 2001




On appeal from a single Judge of the Federal Court of Australia

BETWEEN:
MOHAMMAD LOUBANY

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:
FRENCH, COOPER AND NICHOLSON JJ

DATE OF ORDER:
22 FEBRUARY 2002

WHERE MADE:
PERTH



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

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
W439 OF 2001



BETWEEN:
MOHAMMAD LOUBANY

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGE:
FRENCH, COOPER AND NICHOLSON JJ

DATE:
22 FEBRUARY 2002

PLACE:
PERTH




REASONS FOR JUDGMENT
BACKGROUND

1 The appellant is a Palestinian who was born in Syria. He has resided since his birth at the Al-Yarmouk Palestinian refugee camp. He has been registered with the United Nations Relief and Work Agency ("UNRWA") as a Palestinian refugee in Syria, the country of his former habitual residence.

2 The appellant arrived illegally in Australia on 23 August 2000. On 8 March 2001 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) ("the Act"). A delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") on 23 April 2001 refused to grant a protection visa to the appellant. The decision of the delegate was affirmed by the Refugee Review Tribunal ("the Tribunal") on 29 May 2001. The appellant sought judicial review of the decision of the Tribunal on 6 June 2001. The application was dismissed by a Judge of this Court (Moore J) on 29 August 2001.

3 On 10 September 2001, the appellant appealed to a Full Court of this court against the judgment of Moore J.

THE PROCEEDINGS BEFORE THE TRIBUNAL

4 The appellant claimed that in or about 1994 he was accused of being associated with political riots in Syria during which there was large scale destruction of property. He claimed he was taken into detention for three months, notwithstanding that he had no involvement with the rioters. He claimed that he was beaten, accused of a lack of patriotism and had part of his finger cut off while in detention. Finally, he claimed that the Syrian authorities apologised for mistakenly suspecting him of any wrongdoing.

5 The appellant next claimed that in 1999, when he complained to the police of being assaulted by a drunken driver who had killed his dog, he was assaulted by the police who told him that the persons in the vehicle were associated with the government and that he should not be critical of his masters.

6 Finally, the appellant claimed that in early 2000 he was accused of belonging to the Muslim Brotherhood, the Al Thawra Party, and the National Front, notwithstanding that he had no such political connections and did not know who made the allegations against him. He claimed that he was taken into custody and detained and questioned over a period of two months. His release from detention, he claimed, was procured by the payment by his father of a substantial bribe.

7 The appellant claimed that notwithstanding his release from detention, he remained under observation by the authorities and that his parents were assaulted by police officers who came to check on him at his parents' home. In consequence he claimed he moved to an aunt's house one hundred kilometres from Damascus.

8 The appellant claimed that he left Syria via Damascus Airport using travel documentation issued by the Syrian authorities to Palestinians. He claimed that he had received his travel documentation before being accused of association with the Muslim Brotherhood. He claimed that to facilitate his departure from Syria, a people smuggler had arranged for an exit visa to be stamped on the travel documentation and had paid a bribe to officials at the airport.

9 Finally, he claimed that he threw away his travel documentation en route to Australia because he claimed it had expired.

10 The Tribunal found that despite some reservations as to the appellant's account of his treatment in 1994, it accepted that he was detained for about three months and sustained an injury to his finger during that period. The Tribunal observed that the appellant had no difficulties from the authorities for five years thereafter. It concluded that :

"... The Tribunal concludes that the incident in 1994 had no lasting impact and does not indicate a real chance of persecution in the future by reason of the applicant's political opinion or for any other Convention reason."

11 As to the incident in 1999 following the killing of his dog by a drunken driver, the Tribunal concluded that the incident was an isolated event, which was not motivated by a Convention reason, and the incident did not hold a real chance of persecution in the future.

12 The Tribunal did not accept that in 2000 the appellant was sought for any Convention reason. It did not accept that he was detained or mistreated in 2000, as he claimed, or that he was placed under surveillance by the authorities or forced to go into hiding. Further, it did not accept that if the appellant was sought due to actual or perceived association with political groups involved in efforts to overthrow the State, he would have been able to leave the country using his own travel documentation merely by payment of a bribe.

13 The Tribunal concluded :

"... the applicant was able to depart Syria on official documentation issued to him by the government of that country because he was not wanted by the authorities in relation to any Convention ground."
14 The ultimate conclusion of the Tribunal was :

&quo;
t;In considering all the circumstances of this case, the Tribunal finds that the applicant is stateless and that he is able to obtain an appropriate travel document from the Syrian authorities, with assistance from the United Nations, if required. He is able to return to Syria, his country of former habitual residence. In considering his claims, including cumulatively, the Tribunal finds that he does not face a real chance of persecution for any Convention reason in Syria.
The Tribunal is not satisfied that the applicant is a refugee and affirms the decision not to grant a protection visa."

THE APPLICATION FOR JUDICIAL REVIEW

15 The appellant's application stated that he was aggrieved with the Tribunal's decision because :

"... I am stateless and I can't go back to Syria."
The application stated that the grounds of the application would be given with his submission.

16 As appears from the reasons of Moore J, the appellant appeared in person before his Honour and when asked to identify the legal errors of the Tribunal, stated that the errors of the Tribunal related to :

(a) the capacity of UNRWA to provide protection to Palestinians in Syria;

(b) the manner in which he left Syria, including the fact that he obtained travel documentation by bribing officials;

(c) an arrangement between Australia and Syria concerning the fate of illegal immigrants deported from Australia to Syria, and his desire to be returned to Palestine rather than Syria, if deported.

17 His Honour reviewed the Tribunal's reasons and concluded that there was no demonstrable legal error. His Honour also rejected the invitation of the appellant to engage in an impermissible merits review of the matters he complained of. Accordingly his Honour dismissed the application with costs.

THE PROCEEDINGS ON APPEAL

18 The grounds taken before this Full Court in the notice of appeal are that :

(a) the finding of UNRWA protection in Syria as a basis for finding against his application was in error because there is no such protection which he had tried to explain but about which he had not been believed;

(b) the review authorities did not believe that he had left Syria illegally because he had said that he had paid bribes.

19 The appellant appeared in person on the hearing of his appeal. When asked to identify legal error before the Tribunal or before this Court on the application for judicial review, he again referred to a variety of circumstances where he said the factual conclusions made were wrong and that he was not believed wrongly. In particular, he laid stress upon his alleged membership of the Muslim Brotherhood and the alleged serious consequences following from such membership.

20 We have reviewed the reasons of the Tribunal and of Moore J. We are not persuaded that there is in those reasons any demonstrable legal error. It is true that there is no protection as such offered by the UNRWA which is dedicated to the provision of basic social services to stateless Palestinians. But that issue is irrelevant as the Tribunal found in any event that the appellant was under no threat of persecution from the Syrian authorities. Essentially, the appellant wishes to have set aside the adverse findings made against him by the Tribunal and have accepted by this Court the version of events, and the inferences to be drawn from them, which he contends for. Such a course was not open to Moore J nor is it open to this Court on appeal.

21 The appeal is dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French, Cooper and Nicholson JJ.



Associate:

Dated: 22 February 2002

Appellant in person
Mohammad Loubany




Counsel for the Respondent:
Mr AA Jenschel




Solicitor for the Respondent
Australian Government Solicitor

Date of Hearing:
22 February 2002




Date of Judgment:
22 February 2002

Last Updated: 6 May 2002


Rattan v Minister for Immigration & Multicultural Affairs [2002] FCAFC 28
Rattan v Minister for Immigration & Multicultural Affairs [2002] FCA 150



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Rattan v Minister for Immigration & Multicultural Affairs [2002] FCA 150


MIGRATION: Appeal - no error in primary judge's reasons.

Migration Act 1958 (Cth) s 476

Rajnesh Harish Rattan v Minister for Immigration & Multicultural Affairs

N 1150 of 2001

HEEREY, TAMBERLIN & ALLSOP JJ

22 February 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N1150 of 2001



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
RAJNESH HARISH RATTAN

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:
HEEREY, TAMBERLIN & ALLSOP JJ

DATE OF ORDER:
22 FEBRUARY 2002

WHERE MADE:
SYDNEY



THE COURT ORDERS THAT:

the appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N1150 of 2001



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
RAJNESH HARISH RATTAN

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGE:
HEEREY, TAMBERLIN & ALLSOP JJ

DATE:
22 FEBRUARY 2002

PLACE:
SYDNEY




REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from the orders of a Judge of the Court made on 23 July 2001 dismissing an application for review by the appellant from a decision of the Refugee Review Tribunal (the Tribunal) which affirmed the decision of a delegate of the respondent to refuse the appellant a protection visa.

2 The appellant is a citizen of Fiji of Indian ethnicity. He came to Australia on 11 July 1999 on a student visa intending to study in Australia. While in Australia he was arrested in relation to an assault. He apparently breached the bail conditions of an apprehended violence order imposed on him. He served a short term of imprisonment. These matters led to his failure to comply with the conditions of his student visa. He then lodged an application for a protection visa.

3 The applicant claimed to fear being returned to Fiji, saying that he would be detained, tortured and persecuted.

4 It is unnecessary to set out the appellant's claims before the Tribunal. They are dealt with at length by the Tribunal over fifteen pages. The Tribunal found that some aspects of his claims had been fabricated and some had been exaggerated.

5 The primary judge examined the reasons of the Tribunal and noted that the only complaint put to him was that the Tribunal's decision was wrong factually and that the appellant and his partner would be in danger if returned to Fiji. The primary judge indicated that he had explained to the appellant that the factual correctness of materials contained in the Tribunal's reasons is not a matter with which he could be concerned in judicial review without an operative legal error. The primary judge said that he had carefully read the Tribunal's reasons, which he in part summarised, and could see no error in the Tribunal's reasons which would found a ground of review under subs 476(1) of the Migration Act (1958) (Cth) (the Act).

6 The Notice of Appeal identifies no error of law recognisable under s 476 of the Act. Under the heading "order sought" the appellant states:

There are some facts in my case which I believe the judge overlooked and the decision was not just. I wish to proceed with my case with the guidance of a representative to put my case again.
7 We have examined the reasons of the Tribunal and the reasons of the primary judge. No error of law appears either from the Tribunal's reasons or the reasons of the primary judge.

8 In these circumstances the appeal must be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.



Associate:

Dated: 22 February 2002

The applicant appeared in person with the assistance of an interpreter.




Counsel for the Respondent:
Ms K Sant




Solicitor for the Respondent:
Sparke Helmore




Date of Hearing:
22 February 2002




Date of Judgment:
22 February 2002

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