NNN v Minister for Immigration and Multicultural Affairs

[1998] FCA 191

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 272  of   1997

BETWEEN:	“NNN” APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		O'CONNOR J
DATE OF ORDER:		5 MARCH 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The application is 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
VICTORIA DISTRICT REGISTRY	VG 272 of 1997

BETWEEN:	“NNN” APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	O'CONNOR J
DATE:	5 MARCH 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal (“RRT”) made on 14 May 1997, affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The applicant seeks an order that the decision of the RRT made on 14 May 1997 be quashed and a declaration that on 14 May 1997 the applicant was a person who had a well-founded fear of persecution and was entitled to the grant of a protection visa.  Alternatively, the applicant seeks an order that the application for determination of his refugee status be referred to the RRT to be further determined according to law.

Legislative Context
The relevant provisions of the Migration Act in respect of this application are as follows:

“420  (1)     The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)     The Tribunal, in reviewing a decision:

(a)is not bund by technicalities, legal forms or rules of evidence; and

(b)must act according to substantial justice and the merits of the case.”

...

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 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;

(f)that the decision was induced or affected by fraud or by actual bias;

...

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.”

...

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a 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.”

Factual Background

The applicant is a 62 year old man born in Syria and remains a Syrian citizen, but who had lived in Lebanon since 1948 or 1949.  He lived in Lebanon until he left to come to Australia.  The applicant claims he joined the Phalange in 1977 along with one of his sons and did whatever was required, including fighting the Syrians and manning barricades.  He never took part in active fighting and left Lebanon because he had enough of the fighting and living in fear.  He claims his life was in danger because of his and his son’s involvement with the Phalange.  The applicant left Lebanon in April 1989.

The applicant has made a variety of applications to stay in Australia since he arrived in 1989.  An application for a protection visa was lodged with the Department on 21 March 1996.  The application was rejected by the a delegate of the Minister on 6 December 1996 and the applicant applied for a review of this decision to the RRT on 19 December 1996.  The application for review was rejected by the RRT and his application for a protection visa refused on 14 May 1997.

RRT’s Decision
In relation to the applicant’s claim that he would have applied for a protection visa earlier than he did if he had known about the possibility of such an application, the RRT noted that he had previously been represented by the South Brisbane Immigration and Community Legal Service and did not accept that he would not have been told about the possibility of applying for refugee status had he given his representatives any information which would have indicated that he was eligible.  The RRT noted that

“... there was a considerable delay between his arrival in Australia, in 1989, and his application for a protection visa in March 1996, after he had been arrested and detained by Compliance officers of the Department.  This leads me to doubt whether he has indeed a genuine fear of return to Lebanon.”

In relation to the applicant’s claim of involvement with the Lebanese Forces (“LF”) during the civil war, the RRT did not accept that his involvement amounted to three or four shifts per week of 7 to 8 hours each and this was considerably greater an involvement than he claimed in the past, when his involvement with the LF was minor.  The RRT also did not accept that he would be involved with the LF were he to return to Lebanon.  His lack of knowledge of or interest in the policies of the LF and his disengagement in the two years prior to his departure, did not indicate someone who would be active in the foreseeable future.

The RRT found that:

“... although the applicant has lived for many years in Lebanon, his country of nationality is Syria, and it is against Syria that he must be assessed.  He has shown no interest in politics in Australia, and even in Lebanon was attempting to disengage from involvement in the LF.  There appears to be no chance at all that the applicant would be involved in politics in Syria should he return there.”

The RRT then went on to discuss the relevance of the situation in Lebanon in relation to the applicant’s claims, noting that those who are strongly identified with opposition groups may find themselves the targets of Syrian interest and that active members of the LF especially, seem to have been targeted by the authorities.  However, the RRT found that there was no evidence to show that Syrians who were involved in the civil war in Lebanon, or were members of the Phalange in Lebanon, had been of any interest to the Syrian authorities.

The applicant claimed he has a fear that someone in Syria might recognise him and that someone might then report him to the authorities as having been involved with the Phalange in Lebanon in the 1980’s; or alternatively that a friend might have been arrested and might have given his name to the authorities.

The RRT found that there was no evidence to indicate that the applicant was ever recognised by, or known to, anyone who might report him to the authorities.  The RRT stated that:

“All one can say is that there were many thousands of people involved in all ways in the civil war in Lebanon.  The chance that the applicant would be recognised and then denounced can best be characterised as remote.”

The RRT concluded that:

“Although he is outside his country of nationality, and is unwilling to avail himself of the protection of that country, he does not have a well-founded fear of persecution, in the sense that there is no real chance that he will be persecuted on a Convention ground if he is returned to Syria.”

Grounds of Review

At the hearing the applicant argued only two of the grounds stated in the original application, namely;

1.        Procedures required by the Migration Act to be observed by the RRT in connection with the making of the decision were not observed within s476(1)(a) Migration Act because in making the decision the RRT failed to act according to the substantial justice and merits of the applicant’s case as required by s 420(2)(a) and (b) of the Migration Act; in that, the RRT did not accept that by opposing the proxies of the Syrian government in Lebanon between 1977 to 1989, the applicant would be taken to be an opponent of either or both of the Syrian government should the applicant return to Syria, or the Lebanese government, should the applicant return to Lebanon, and;

Alternatively the RRT failed to consider whether the applicant had, or could avail himself of, protection in Syria.

1. The decision involved an error of law being an incorrect interpretation of the applicable law within s 476(1)(e) Migration Act, in that;

The RRT erred in adopting a construction of “well founded fear” within the Refugees Convention which failed to acknowledge that a charge of treason based on behaviour of a person could constitute conduct leading to a fear of persecution where the behaviour represented an expression of political belief or the expression of values inherent in membership of a social group within the meaning of the Refugees Convention.

In relation to the first ground the applicant made no submission and, in my view, having considered the particulars provided, this ground amounts to no more than an invitation to the Court to conduct a review of the merits of the case.  Counsel for the applicant when asked whether he wished to say anything in relation to the findings as to credit made by the Tribunal, declined to do so.  The principles which guide the Court in dealing with submissions as to errors of law in relation to credibility have been considered in Navaratne v Minister for Immigration and Ethnic Affairs, a decision of Tamberlin J where he said:

“The credibility of an applicant is largely a matter of impression.  There is no reasons, in principle, why the observations of the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179, as to the disadvantage of an appellate body in considering credibility findings should not apply in respect of review application to this Court under s 476 of the Act. The oft-cited remarks of the Court as to the “subtle influence of demeanour” are especially important in migration cases where many of an applicant’s assertions must be accepted at face value in the absence of any evidence to the contrary.”

Applying these considerations to this case and the matters I have raised before, I do not consider that the RRT failed in relation to any procedures in connection with the making of the decision and no error of law is made out in respect of that ground.

The second ground is that the RRT made an error of law by interpreting the applicable law incorrectly .

At paragraphs 55 and 56 of its reasons for decision the RRT said:

“There is no evidence to show that Syrians who were involved in the civil war in Lebanon, or were members of the Phalange in Lebanon, have been of any interest to the Syrian authorities.

I accept that if the applicant had in fact fought against his own government, and the authorities were aware of this, the applicant might face prosecution as a traitor.  However, the applicant has not in fact claimed to have been involved in fighting against the Syrians, and I have found that he has exaggerated the extent of his involvement with the LF.  However, if he has in fact fought against his country, and were charged as a traitor, that would be a prosecution for a criminal offence, known to all governments, and considered seriously by all governments.”

Then in a section of the decision headed “Findings” the RRT found at paragraphs 63, 64 and 65, as follows:

“I accept that he was involved in some minor way with the LF prior to his departure from Lebanon in 1989.  He has had no involvement with Lebanese politics since that date.

I do not accept that the Syrian authorities know of his involvement, nor that there is a real chance that they would find out about it in the foreseeable future.

If the applicant were prosecuted for fighting against his country, he would be facing a criminal charge based on is behaviour, not his political opinions.  All countries have stringent penalties for treason.  This does not amount to persecution, but to prosecution for an offence.  However, there is not a real chance that this might happen.”

The applicant submits that the views expressed above as to the prosecution for treason amounting to persecution are an incorrect statement of the law on this matter.

While not able to point to any part of the decision where the RRT does apply the law that a prosecution for treason does not amount to persecution, the applicant submits that to state an incorrect legal proposition “infects” the finding of the Tribunal in relation to “a real chance” of persecution and that was the finding that the Tribunal certainly had to make.  The Court has not in this decision referred to the authorities made available to it by the applicant to demonstrate the correct law on this question of a charge of treason amounting to persecution for a political opinion because the findings of the Tribunal in relation to these matters, set out above and which the Court considers it was entitled to make on the evidence before it, do not raise it as an issue.  The consideration of “real chance” does not, in the body of the decision, turn on this proposition of law and it was not applied to the facts as found.

The applicant said that the juxtaposing of the statement of law in the decision immediately before a finding as to “real chance” infers that it was taken into account in making the finding.  I do not accept that submission.  A clear reading of the decision as a whole and the paragraphs referred to above could not lead to that conclusion, in my view.  S 476(1)(e) refers to an incorrect interpretation of the applicable law (my emphasis).  This statement could only be regarded as an obiter remark which would have become relevant had the Tribunal come to the view that there was a “real chance” that the applicant would be prosecuted by the Syrian authorities for fighting against Syria.  The applicant in this case did not challenge the findings and the basis of the findings in relation to that matter made by the decision-maker, nor could he.  This statement of law, whether correct or not never became relevant to the decision and is not “applicable”.

It is unfortunate that the decision-maker chose to discuss and express views as to legal principles which were not germane to the decision made.  However as the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, a reviewing court is required to give the language of the decision-maker a beneficial construction without concern for looseness of language, unhappy phrasing or a verbal slip. The reasons for decision are not to be construed minutely and finely with an eye keenly attuned to the perception of error.

Applying this approach to the decision before the Court, I consider that the second ground for review is not made out.

The application is dismissed with costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice  O'Connor

Associate:

Dated:                  5 March 1998

Counsel for the Applicant:	Mr Tom Hurley
Solicitor for the Applicant:	Erskine Rodan & Associates Attention: M. Clothier
Counsel for the Respondent:	Mr Peter Booth Mr Craig Rawson
Solicitor for the Respondent:	Australian Government Solicitor Attention: Craig Rawson
Dates of Hearing:	4 & 5 March 1998
Date of Judgment:	5 March 1998