Chemaly, Yolla Majid v Minister for Immigration and Multicultural Affairs

[1998] FCA 1694

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1249  of   1998

BETWEEN:	YOLLA MAJID CHEMALY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		LINDGREN J
DATE OF ORDER:		9 DECEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

1. 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
NEW SOUTH WALES DISTRICT REGISTRY	NG 1249 of 1998

BETWEEN:	YOLLA MAJID CHEMALY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	9 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

INTRODUCTION
The applicant applies for an extension of time in which to appeal from a judgment of a judge of the Court given on 26 October 1998.  Order 52, r 15 of the Federal Court Rules provides for the filing and service of a notice of appeal within twenty-one days after the date when the judgment appealed from was pronounced.  In the present case, that was 26 October 1998, and accordingly, the twenty one day period expired on 16 November 1998.

The present application was filed on 19 November 1998, only three days after expiry of the twenty-one day period, supported by an affidavit of that date by James Coelho the solicitor for the applicant.  Mr Coelho’s affidavit gave an account of what had happened between Monday, 26 October and Thursday, 19 November.  The period of lateness was clearly a small one.  Although it is put for the respondent (“the Minister”) that there is not a satisfactory explanation of the delay, I do not need to deal with this submission because in my opinion an appeal would have no prospects of success for reasons which I will mention.  On that ground I propose to decline to extend the time for filing a notice of appeal.

BACKGROUND

The applicant who is a citizen of Lebanon arrived in Australia on 21 December 1996.  On 18 March 1997 she lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”). On 31 May 1997, a delegate of the Minister refused to grant the protection visa. On 12 June 1997, Ms Chemaly applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision. The Tribunal, on 5 May 1998, affirmed the delegate’s decision. Ms Chemaly then applied, as she was entitled to do, to this Court for a review of the Tribunal’s decision. As I indicated earlier, the primary Judge dismissed her application on 26 October 1998.

I need not refer to the detail of the Tribunal’s reasons for decision or, for that matter, to the detail of the reasons for decision of the primary judge. The Tribunal held that Ms Chemaly did not meet the criterion provided for in section 36 of the Act for the grant of a protection visa, namely, that the applicant be a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.  The notion of a “refugee” is defined in article 1A (2) of the Convention to mean any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

Ms Chemaly is a Christian and was found by the Tribunal to be a supporter of General Aoun, the exiled former Prime Minister of Lebanon.  Her case was that as a supporter of General Aoun, she was at risk of arrest and torture in Lebanon.  At the heart of Ms Chemaly’s case was her allegation that while in Lebanon she had become engaged to be married to a man who, unbeknown to her, was a Syrian Intelligence officer.  She alleged that this man had assaulted her and that his violence was attributable to her links with the Aounists.

She said that she had been unable to obtain the protection of the Lebanese authorities because of her former fiancé’s Syrian connections.  Her claim was, therefore, that she had a well-founded fear of being persecuted for reasons of political opinion or for reasons of her membership of a particular social group, namely, those Lebanese having a close relationship with Syrian Intelligence officers. 

The Tribunal set out in detail Ms Chemaly’s claims which she had made in written submissions and in oral evidence.  The primary judge also set out at length extracts from the Tribunal’s reasons for decision.  Importantly, the Tribunal was of the opinion that Ms Chemaly’s claim to have become engaged by mistake to a Syrian who was a member of the Syrian Intelligence lacked credibility.  The Tribunal member gave reasons for this conclusion and said that he did not consider it plausible that Ms Chemaly had been unknowingly engaged for ten months to a Syrian agent.  The Tribunal member said:

“I accept the claim that the applicant had been assaulted on several occasions by her former fiancé but I do not accept, given the independent information quoted above and the applicant’s own evidence of her limited work for the Aounist Movement, that the assaults were caused by her political beliefs, ie: low-level Aounist involvement.  Neither do I accept, as said previously, her claim to have become engaged by mistake to a Syrian intelligence agent to be plausible.  I am of the opinion that the assaults on her were caused by personal reasons for revenge, because she broke off her engagement, not for a Convention reason.

...

In sum, I find that the applicant’s evidence lacked credibility and am of the opinion that she has fabricated a story of being mistreated by a Syrian intelligence agent in order to substantiate her application for protection in Australia.”

The submissions made on behalf of Ms Chemaly in support of her application for an extension of time refer to s 476 (1) (a) and (e) of the Act which are as follows:

“476(1)          Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(e) that the decision 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 person who made the decision, whether or not the error appears on the record of the decision; ...”

The submissions made in support of the application for an extension of time turn on the way in which the primary judge dealt with the Tribunal’s finding as to credit.   Other matters were raised before his Honour with which he dealt in his reasons for judgment but I need not address them.

Before the primary judge, counsel submitted that the Tribunal’s conclusion that Ms Chemaly’s account lacked credibility and had been fabricated was based on a priori reasoning which contained a logical fallacy.   The Tribunal, so it was submitted, had simply assumed that a person such as the applicant could not have overlooked the fact that her fiancé was a member of the Intelligence Service of a foreign power.  In support, it was urged before his Honour that the very point of covert activities is to keep them secret.

The primary judge did not accept counsel’s submission.  He thought that a difficulty with it was that the Tribunal did not base its findings merely on an a priori assumption of the kind described.  His Honour noted that the Tribunal had taken into account other matters including Ms Chemaly’s own evidence that her fiancé was related to a close friend of hers and that her brother had friends who had become aware of her fiancé’s role as a Syrian Intelligence officer.  The primary judge also referred to a serious inconsistency in Ms Chemaly’s evidence which she had not been able to explain.  This was that she had said at one point that she had broken off her engagement because her fiancé had come to the convent where she had worked and had assaulted her in front of her students, while in a statutory declaration she said that she had broken off the engagement prior to the incident at the convent.

The primary judge referred to the well-established proposition that a body, such as the Tribunal here, is in a specially privileged position to assess and determine factual issues. 

In support of the present application for an extension of time, it is submitted that his Honour erred in his approach to the question of credit.  The submission seems to assume that he misunderstood that the Tribunal had made an adverse finding as to the credit of Ms Chemaly generally.  This, however, is incorrect: the primary judge said of the Tribunal at page 10 of his Reasons for Judgment:

“It specifically found that aspects (although not all aspects) of her account lacked credibility.  The RRT took into account, as it was entitled to do, its impression of her as a witness.”

The written submissions of counsel for Ms Chemaly in support of her present application for an extension of time also suggest that there is some confusion as to what exactly the Tribunal found to be the key plank in Ms Chemaly’s case that she had been unknowingly engaged for ten months to a Syrian agent.  It is put that when the Tribunal member said that he did not consider it plausible that Ms Chemaly had been unknowingly engaged for ten months to a Syrian agent, he did not make it clear whether he did not believe that the fiancé was an agent or accepted that the fiancé was an agent but also accepted that Ms Chemaly had known this for about ten months.

I do not think that there is any substance in this submission: the Tribunal member clearly did not accept that factual matter which was at the centre of Ms Chemaly’s case, that is, she had been engaged to the man for ten months without being aware that he was a Syrian intelligence agent.

In relation to the “error of law ground”, likewise, I do not think that there is any prospect of success on an appeal.  This ground raises nothing more than a challenge to the factual findings of the Tribunal.  Of course, the inquiry into the facts is a task which the Parliament has assigned to the Tribunal and not to this Court, either at first instance or on appeal. 

CONCLUSION

For the above reasons, the orders of the Court are that:

1. The application be dismissed.

1. The applicant pay the respondent’s costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            9 December 1998

Counsel for the Applicant:	Mr P  Segal
Solicitor for the Applicant:	Coelho & Solicitors
Counsel for the Respondent:	Mr P S  Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3, 9 December 1998
Date of Judgment:	9 December 1998