Plaintiff M26 of 2005 v Minister for Immigration
[2007] FMCA 189
•21 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PLAINTIFF M26 of 2005 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 189 |
| MIGRATION – Constitutional writs sought – application out of time – considerations for the extension of time – merit of application one such consideration – hearing of substantive application to determine merit – test to determine whether fear of persecution well-founded – “real chance” test – denial of natural justice/procedural fairness – s.420 issue – no merit in substantive application – otherwise no basis for extension of time – application time barred – application dismissed. |
| Migration Act 1958, ss.48B, 417, 420 High Court Rules 2004, rr.25.06, 25.07 |
| In Re Commonwealth; ex parte Marks (2000) 177 ALR 491 Das v Minister for Immigration and Multicultural Affairs [2004] FCA 489 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 VAAD v Minister for Immigration and Multicultural Affairs (No. 2) [2004] FCAFC 117 Vat v Minister for Immigration and Multicultural Affairs [1999] FCA 1762 Eshetu v Minister for Immigration and Ethnic Affairs [1997] 71 FCR 300 |
Applicant: | PLAINTIFF M26 OF 2005 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1002 of 2005 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 5 April 2006 |
| Last Interlocutory Hearing | 12 February 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 21 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Esser |
| Solicitors for the Applicant: | Brand Partners |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read, “Minister for Immigration and Citizenship”.
The application for review, as amended, is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $9,000.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1002 of 2005
| PLAINTIFF M26 OF 2005 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
This proceeding has a protracted history. It commenced in the High Court of Australia when the applicant filed an application for review, seeking Constitutional writs in respect of a decision of the Refugee Review Tribunal (the Tribunal) dated 27 July 2004 and handed down on 20 August 2004. On 29 July 2005, the High Court remitted the further hearing of the application to this Court. Certain procedural orders followed which allowed the applicant to file an amended application and these were not complied with until 17 March 2006.
Application to amend after hearing
The hearing took place on 5 April 2006. After that hearing the applicant sought leave to file a further amended application. The basis for this was to delete references in the amended application to matters that had no factual basis; such as the applicant’s profile with the pro-Christian National Liberal Party (NLP) in Lebanon and the assertion that he worked as a personal bodyguard to a former president of Lebanon. Leave was granted on 3 May 2006 for the applicant to file that limited further amended application and further procedural orders were made for the first respondent to file any supplementary contentions of fact and law and for the applicant to reply by 31 May 2006. The first respondent did file supplementary contentions of fact and law but no reply was filed by the applicant.
Further application prior to handing down of decision
After a number of months had passed the applicant indicated that he wished to file a further application prior to the handing down of the decision. The nature of that application was not foreshadowed, but in compliance with the request the decision was not handed down.
On 22 January 2007, the applicant filed an application which sought to adduce further evidence. This application was heard and determined on 12 February 2007. On the hearing of that application it became evident that the applicant had embarked on a misconceived course of action.
The applicant contended that he was not attempting to adduce further evidence by way of a merits review. To give the application some credible basis, the applicant via oral submissions made by his counsel, sought orders that when the matter is remitted, the Court make directions to the Tribunal as to the adducement of further evidence.
It was accepted by the applicant that this application was predicated upon a finding by the Court that there was jurisdictional error in the Tribunal’s decision. To that extent the application was premature as no such determination had been made.
In any event, should the Court so find, the proceeding would be remitted back to the Tribunal which would consider any current evidence put to it pertinent to the question of whether Australia owed protection to the applicant. In light of this, there never was a basis for such an application. Further, it would be highly improper and illegal for this Court to have given directions as to how the Tribunal should conduct that hearing. Accordingly, the application was dismissed and the question of costs reserved.
Application out of time
The first respondent contended that the application lodged with the High Court was out of time. In remitting the matter to this Court the High Court directed that the hearing in this Court be governed by r.25.06 and 25.07 of the High Court Rules 2004. Those rules relate to the time limits for applications seeking writs of certiorari (six months) and mandamus (two months). The application to the High Court was issued out of time in respect of the Constitutional writs sought.
Part of the application to the High Court, which is also an extant application in this Court by the applicant, is for an extension of time. In the absence of an extension of time, the proceeding is time barred.
The relevant principles applying in respect of an extension of time are discussed in In Re Commonwealth; ex parte Marks (2000) 177 ALR 491. In that case his Honour McHugh J noted at [15]:
An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or a refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
Further at [17] his Honour states that:
The applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari.
In this case prior to the receipt of the applicant’s contentions of fact and law on the morning of the hearing on 5 April 2006, the only matter that was raised by the applicant as to why the application had not been filed in the High Court within time was that the applicant was unable to afford legal representation. This factor is deposed to in an affidavit filed by the applicant in which he effectively states that without adequate resources he could not afford legal representation and therefore was not aware of the time limits. This issue was also raised in a further affidavit sworn the day before the hearing.
A further case on point is that of Das v Minister for Immigration and Multicultural Affairs [2004] FCA 489. Sundberg J, when considering an application for an extension of time in relation to Constitutional writs, stated the following at [12]:
In further explanation for his delay in applying to the High Court, the applicant said he was “without sufficient means and was unable to obtain any other form of support to seek a review of the decision by the Court within the time permitted”. No particulars of the applicant’s financial position were provided, and there is thus no basis upon which to assess the extent or weight of the alleged financial constraint. I do not regard that unparticularised claim is a satisfactory explanation for the delay. Similar bald claims of lack of money were rejected in Applicant N29/2001, Applicant VUAD/2003, Daniel and Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs.
However, the quotation from Sundberg J’s decision goes on further to speak of a need to give consideration to the merit of the application.
This Court found itself in a bind as, in order to give effect to that consideration, it was necessary to examine the merit of the substantive application for review which effectively amounted to a full hearing.
If it did not have merit, obviously the matter would be time barred in the first instance and unsuccessful on the substantive application. In the circumstances, I determined that the matter should be heard and a determination made at the conclusion as to whether an extension of time should be granted.
Before moving on to consider the merit of the substantive application for review, there are some issues that can be determined which are pertinent to the question of an extension of time. In the contentions of fact and law filed by the applicant on 5 April 2006, certain claims were made by way of further explanation for a failure to make the application within time. One claim was that the applicant didn’t speak English, nor comprehend correspondence sent to him in English. However, it is to be noted that in his application for a protection visa he indicated that he spoke English and could read and write it. Also he indicated that he did not need an interpreter, which proved correct as he was interviewed by the first respondent’s delegate without one and also conducted the hearing before the Tribunal without one. The basis for an extension of time set out in his contentions of fact and law appear to be without foundation.
It is also to be highlighted that the correspondence sent to the applicant clearly makes reference to the avenues open to him should he disagree with the Tribunal’s decision. Those avenues include filing an application with the Federal Court, the Federal Magistrates Court or the High Court. In so advising, the applicant was warned of the strict time limits applying and further to promptly seek legal advice if he wished to have a review by the Courts.
Merit of the substantive review application
Background
The applicant, who is a Lebanese citizen, arrived in Australia on
7 November 2001. On 31 January 2002, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it was then named).
He attended an interview with the first respondent’s delegate on
5 June 2002 and on 11 June 2002 the first respondent’s delegate refused to grant a protection visa to the applicant.
On 28 June 2002, the applicant lodged with the Tribunal an application for a review of the delegate’s decision and on 24 February 2004 and
28 April 2004 the applicant submitted supporting material.
On 28 April 2004 a Tribunal conducted a hearing in which the applicant and his brother gave oral evidence.
As previously stated, on 20 August the Tribunal handed down its decision dated 27 July 2004 in which it affirmed the delegate’s decision.
The Tribunal’s decision
In broad terms, the applicant claimed before the Tribunal that he faced a real chance of persecution at the hands of:
(a)The Lebanese authorities;
(b)The Syrian authorities; and
(c)Fundamentalist Muslims;
due to his Christian religion and his political opinions.
In particular, the applicant claimed (as set out in the first respondent’s contentions which were accepted as correct by the applicant) that:
(a)In the late 1990s, the area of Lebanon in which the applicant’s family lived came under the control of the Syrian army;
(b)At this time, people like the applicant were pressured to join the Lebanese army;
(c)Sometimes, the Syrians raided his area and claimed that he and others were giving information to the enemy;
(d)On one occasion, he had been detained by the Syrians but he escaped;
(e)On a number of occasions, he had been stopped by Syrian or Lebanese authorities and questioned. On one such occasion, he was detained for a few days by the Syrians;
(f)The applicant did not wish to fulfil his military service obligations in Lebanon because;
(i)the training was rough;
(ii)he would have no rights in the army; and
(iii)he would not be able to contact his family during his military service;
(g)As a Christian, he feared harm at the hands of radical fundamentalist groups which had openly declared that they would use violence against the mostly Christian groups opposing Syrian occupation in Lebanon;
(h)The applicant was a supporter of a Christian group, the NLP;
(i)During the civil war, this group had dealings with the Israelis;
(j)The applicant’s support for this group attracted adverse attention from the Syrian authorities;
(k)The applicant’s house had been raided several times by the Syrian army and he had been tortured by the Syrians;
(l)During the civil war, the applicant had been part of the Lebanese Forces (LF) and, although he did not hold any military rank, he had about 60 men under his control;
(m)Several years ago, the applicant was imprisoned for 21 days for clearing land. While in Australia, he had been fined $2000 in relation to this offence. The fine had since been paid and the matter was finalised; and
(n)He feared military service because he believed that, in the event of war, he would be sent to the front line due to his Christianity and his previous involvement with Israelis.
In its decision, the Tribunal found that the applicant did not have a well-founded fear of persecution in Lebanon on account of his political opinion or religion.
The Tribunal’s findings
The first respondent’s written contentions set out a convenient summary of the Tribunal’s findings, which I understand are accepted as correct by the applicant. The Tribunal found that:
(a)The applicant was a Lebanese citizen;
(b)The applicant held a subjective fear of returning to Lebanon;
(c)There was no substance to the claim that, merely as a member or former member of the LF or a member of a political group supportive of the LF’s goals, the applicant faced a real chance of persecution in Lebanon if he returned there;
(d)Members or former members of the LF did not face a threat from Palestinians in Lebanon;
(e)The weight of the evidence before the Tribunal did not support a finding that the circumstances that gave rise to the civil war in Lebanon continued to exist such that the applicant would have a well-founded fear of harm in Lebanon due to such circumstances;
(f)The LF organization was forced to disarm in 1991 and to disband in 1994. Around this time, the Lebanese government arrested some of the LF who’s members left the country;
(g)There had not been a continuation of the situation which led other members of the applicant’s family to leave Lebanon;
(h)Since that time, the applicant had not suffered persecution due to his former membership of a political organization associated with the LF;
(i)The applicant’s evidence that he had been a victim of Syrian violence had “been exaggerated at times in his written submissions”;
(j)The applicant’s account of his clash with the authorities over the clearing of some land did not suggest that he was the victim of an unjust law due to his Christian religion or his opposition to the Syrian presence in Lebanon;
(k)Since 1993, a law of universal conscription for men aged between 18 and 21 years had existed in Lebanon but due to the applicant’s age, this law will not apply to him;
(l)A possibility of some future war in which the applicant might be obliged, as a Lebanese male citizen, to join the army could not be ruled out. However, barring some unforeseeable eventuality, the applicant, at the age of 43 years and with a young family, would not be required to undertake military service, particularly as it had not been required of him in the past;
(m)In any event, there was no evidence before the Tribunal to suggest that the applicant’s desire to avoid military service amounted to a conscientious objection;
(n)There was no independent evidence to support a claim that Israeli alliances and contacts from the civil war period continued to be a source of strife in cases where a person like the applicant had subsequently resumed his ordinary daily life;
(o)The applicant held political opinions supporting Christian leaders and their causes. This support, even if openly stated in Lebanon, would not be sufficient to have the applicant detained or treated in a persecutory way;
(p)The applicant was one of many Lebanese who resented the continuing presence of Syrians in their country. However, the presence of Syrians and their power in Lebanon did not, of themselves, mean that the applicant faced a real chance of persecution in that country; and
(q)The applicant’s ability to depart Lebanon without incident suggested that he was not of interest to Syrian or Lebanese authorities.
The Tribunal then concluded that:
“The Tribunal accepts that the applicant’s life in Lebanon has been difficult, living as he did in the chaos of a civil war, not taking up the opportunity to leave his country as other family members did and now part of a complex country situation where his government is subjected to outside forces as well as internal tension. However, it does not find that these factors make him a refugee under the Refugees Convention. It has considered his personal circumstances and accepts that he has a strong preference to bring his family to Australia and resettle here. However, it finds that this preference is not supported by a need for freedom from persecution as envisaged in the Refugees Convention. It is satisfied that he is not a person who will be detained and persecuted on his return. It does not find that he has a political or religious profile or identity which will cause the Lebanese government or Syria and its agents in Lebanon to take persecutory action against him.”
The contentions
In the applicant’s amended application filed on 17 March 2006, there were five grounds set out which the applicant supported by written contentions of fact and law and verbal submissions at the substantive hearing. In addition, at the substantive hearing the applicant raised a further issue centred on the application of s.420 of the Act.
In respect of the first four grounds of appeal, some of which contain language later expunged in the further amended application filed on
3 May 2006, the applicant argued that the Tribunal was in error in how it approached its fact finding process and in applying definitions. As the applicant put it, “The RRT simply applied the wrong test…
The application of the wrong test we say in this case resulted in totally adverse findings”.The applicant contended that the Tribunal accepted certain facts which lead to a conclusion that the applicant had a reasonable subjective fear of persecution but unexpectedly concluded that nevertheless those fears were not reasonable or objectively held.
The applicant claimed the Tribunal failed to apply the appropriate test in relation to determining whether or not the fear of persecution was “well-founded”. It was submitted that the Tribunal failed to apply the “real chance” test. (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259)
Counsel for the applicant submitted that the “real chance” test looks prospectively and said “In view of the history of this man, in view of the ambient intentions under which this man has survived, in view of the political tensions that have existed and are likely to continue to exist, is there a real chance of persecution for this man in this place?” It was the submission of counsel for the applicant that this was the test that ought to have been applied.
The applicant submitted that at no point did the Tribunal do what his Honour Kirby J in Wu Shan Liang says is required; namely, to “stand back”. As his Honour stated at 293:
“The decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: “What if I am wrong?” Otherwise by eliminating facts on the way to the final conclusion, based upon what seems “likely” or “entitled to greater weight”, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a “real chance” of persecution.”
The applicant was critical of the Tribunal seeming to think that because the civil war in Lebanon was over, that was the end of tensions.
The applicant contended that a cursory look at any newspaper of any kind anywhere in the world would demonstrate beyond a doubt that the tensions that gave rise to the war in Lebanon have not dissipated. There was much discussion about the present day circumstances of Lebanon from a political and religious context. That discussion was at the fore during the substantive hearing on 5 April 2006 and again at the hearing on 12 February 2007, having regard to events in Lebanon since the substantive hearing.
The applicant was very careful to express that there was no attempt on his part to ask the Court for a review on the merits, knowing that this Court has no jurisdiction to do so. However, it cannot be denied that the tone and content of the applicant’s submissions were designed to at least influence the Court by what is now happening in Lebanon. However, it is trite law that it is the factual situation pertaining at the time of the Tribunal’s decision that is pertinent and should circumstances have changed at the time of a review hearing, this Court is unable to entertain those changes.
The first respondent takes issue with the contention of the applicant that the Tribunal’s decision was affected by jurisdictional error because it applied the wrong test. The first respondent claims that the highest the applicant’s contentions can be put is that the Tribunal misconstrued the evidence that was before it.
In my view, it is clear that the Tribunal was mindful of the test to be applied as set out in Chan. In discussing the law at the beginning of its decision the Tribunal made the following statement:
“A real chance is one that is not remote or insubstantial or a far fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent.”
A fair reading of the Tribunal’s reasons can only lead to the conclusion that the Tribunal was conscious of the test. At various points in its reasons the Tribunal referred to the “real chance” test. For example the Tribunal found that:
“….there is no real chance of recurrence of these circumstances such as would put the applicant at risk of persecution.”
There are other points in the Tribunal’s reasons where it is clear that the “real chance” test has guided the Tribunal in its assessment of the applicant’s claims.
There is no doubt that the “real chance test” is the applicable law in Australia (See Chan; Wu Shan Liang and Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151). The applicant put some reliance upon the judgment of his Honour Kirby J in Wu Shan Liang where he, who was in the minority, indicated that it is necessary for a Tribunal to ask itself “what if I am wrong?”. This issue was discussed in Guo, a case which determined that the “what if I am wrong” test was only a step that need be taken by a decision-maker where the decision-maker has expressed some real doubt about a conclusion which the decision-maker has arrived at. This test was also considered in the Full Federal Court case of Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, in which the majority was of the view, as stated by Sackville J at 238:
“Nothing in the reasoning of the joint judgment (in Guo) suggests that if the RRT, although apparently having no real doubt as to its findings, should have had doubts, it is bound to consider the possibility that the relevant event might have occurred. Doubtless this is because an objective test of this nature would require the Court to transgress the boundaries of judicial review by considering the merits of the RRT’s decision.”
I take a similar view in this case. A fair reading of the Tribunal’s reasons leads to the conclusion that there was no real doubt expressed by the Tribunal as to its findings and as a consequence the question “what if I am wrong?” is not raised. In its findings, the Tribunal comes to the conclusion that the applicant would not be subject to a real chance of persecution if returned to Lebanon in the reasonably foreseeable future. It is manifest that the Tribunal came to the view and conclusion that in relation to this applicant the circumstances that he complained of that may have been persecutory and supportive of his claim in the past, had changed at the time of the hearing before the Tribunal.
Stated grounds for review
The first to third grounds of the application for a review all seem to be predicated upon an approach which suggests that the applicant was a high profile member of the LP. However, it was conceded by the applicant that in the material before the Tribunal there was no suggestion he was a high profile member of the NLP; nor that he occupied some high profile position within the party; nor that he had been an outspoken advocate for the party’s cause; nor that he was fearful of harm as a consequence. That concession was made when the applicant in the further amended application filed after the hearing expunged those statements.
As the Tribunal stated:
“[It] accepts that the applicant has political opinions about Christian leaders and their political causes. It does not find that this support, even if stated openly in Lebanon, would be sufficient to have the applicant detained or treated in a persecutory way.”
Essentially, that is a finding which deals with the claims as put by the applicant in its first ground. As previously stated, there is nothing in the claims made by the applicant to support the particulars set out under the first ground that he was a bodyguard to a former president. Consequently, the applicant saw need to amend the grounds subsequent to the hearing in order to remove this incorrect particular.
In further particulars given under grounds for review, the applicant refers to having been arrested on numerous occasions, forcefully questioned, tortured, beaten and from having suffered lit cigarettes being applied directly to his hands. It also refers to him being illegally and arbitrarily detained for a period of 21 days. The applicant claims the Tribunal somehow failed to take into account the claims relating to what pro-Syrian forces had done in the past to him.
This is manifestly not so. When one has regard to the Tribunal’s findings and reasons, the Tribunal quite clearly indicates that apart from a change in the circumstances in Lebanon, it concluded as follows:
“It [the Tribunal] has considered the evidence submitted at various times during the processing of his protection visa claim to have been a victim of Syrian violence. The Tribunal considers that this has been exaggerated at times in his written submissions.”
The Tribunal went on to consider the applicant’s detention due to charges against him as a result of clearing land. The applicant agreed with the Tribunal at the hearing, according to the Tribunal’s record of it, that there was a law in place which prevented clearing of land in the way that the applicant had done.
The Tribunal went on to find that there was no suggestion that the applicant was treated differently than others who might have been found guilty of that offence.
It is clear that the Tribunal took into account all of the matters referred to by the applicant in support of his claim for a protection visa.
The Tribunal then looked to the future which it was required to do and in so doing, it had regard to the fact that the applicant was able to leave Lebanon, a country which is highly conscious of its security and which takes precautions in terms of people’s movement into and out of the country. The Tribunal found that the applicant, having been able to leave as he did, could not have been of any interest to the authorities.
In respect of the applicant’s claims relating to the presence of Syrians in Lebanon and that presence being a cause of consternation to him, the Tribunal concluded as follows:
“However, the presence of Syrians and their power in Lebanon do not of themselves mean that this applicant is persecuted or faces a real chance of persecution. Indicative of this lack of persecutory action is the fact that he was able to leave Lebanon without being detained. There is no convincing evidence before the Tribunal that any agent of the Syrian government intends to harm him on his return.”
In terms of the second ground raised in the amended application filed on 17 March 2006, the only point of distinction between that ground and the first ground is that by reason of the applicant being allegedly a high profile member of the NLP, he would be seen to be a supporter of the State of Israel. That was also a claim that the Tribunal clearly dealt with in its findings and reasons. Specifically the Tribunal concluded as follows:
“While there is a high level of suspicion of Israel, the Tribunal could not find independent evidence which would support a claim that alliances and contacts which belong to the civil war period continue to be a source of strife in cases where a person like the applicant has resumed his ordinary daily life.”
In any event, the applicant’s claim of being a high profile member of the NLP was one that was expunged from the amended application filed after the hearing.
The Tribunal then went on to say:
“The Tribunal also notes that the applicant’s own role during the war years was largely confined to his own village area, that he held no military rank, and in the aftermath of the war, he was not harmed to the point of persecution.”
The second ground appears to suggest that somehow the Tribunal has failed to address some particular aspects of the applicant’s account, but it hasn’t. The Tribunal has made a finding with which the applicant disagrees, but that is a matter for merits review which this Court does not have jurisdiction to entertain.
The third ground in the amended application filed on 17 March 2006 seems to add an argument that somehow the Tribunal failed to appreciate that circumstances which existed during the time of the civil war continued to exist. The Tribunal made a factual finding about that, namely:
“The Tribunal put to the applicant that the circumstances which led to the outbreak of civil war, to the applicant’s role in promoting the cause of the Christian militia and in administering his own area of control, are now significantly changed. There has been a resumption of inter-confessional leadership and representation in the parliament. While the applicant did not agree with this assessment, the Tribunal concludes that the weight of evidence before it is such as to make a finding that the issues and incidents which gave rise to the civil war are no longer such as to support a finding that the applicant’s fear for those reasons is objectively well founded. The Tribunal finds that there is no real chance of a re-occurrence of these circumstances, such as would put the applicant at risk of persecution.”
The applicant’s counsel in the most recent hearing made great play of the fact that the Tribunal had got it so terribly wrong. He referred to recent events that have happened since the substantive hearing on
5 April 2006 as being indicative of how substantially wrong the Tribunal was. However, although events subsequent to the substantive hearing proved some of the concerns of the applicant and his counsel to be correct, the law dictates that I must examine the decision of the Tribunal in light of the circumstances pertaining at the time it was made, and whether at that time the Tribunal’s decision was affected by jurisdictional error.
The Court was invited to, in effect, draw the conclusion that the Tribunal was manifestly in error because the conclusion it reached has been shown by subsequent events to be wrong. It was said that the subsequent events gave the Court a discretion, but it was not articulated as to how that discretion was to be exercised in a way that, in effect, required the Court to ignore its task to otherwise examine the Tribunal’s decision on the face of it to determine whether jurisdictional error had occurred.
The Tribunal made very clear findings that things have changed since the civil war. The suggestion implied, in the grounds for a review and verbal submissions made at the substantive hearing on 5 April 2006, that the Tribunal failed to appreciate that the Lebanese governments were puppet governments dominated by and dictated by pro-Syrian forces, is one without substance. As the Tribunal stated:
“The Tribunal accepts that he is resentful of the presence of Syrian workers who are able to assert themselves over Lebanese workers because of the influence of Syria on Lebanon's government. It does not find that this has been accompanied by persecutory action by the government such as preventing Lebanese from applying and getting jobs, or any similar range of limitations. In this the applicant is unfortunate as are other Lebanese citizens, that they are not in full control of their own country.”
Clearly in assessing whether or not there was a real chance that the applicant might face persecution in the future, the Tribunal had taken into account the fact that Syria did have a presence in Lebanon.
The fourth ground seems to re-agitate matters which arguably are raised in the third ground and its particulars.
In my view, the four grounds set out in the amended application filed on 17 March 2006, and further amended after the substantive hearing, do no more than to spell out grounds for review that seek a merits review of the Tribunal’s fact-finding process. As such they do not disclose any jurisdictional error on the part of the Tribunal. The Tribunal has made appropriate findings of fact that were open to it on the evidence and which dispose of the applicant’s claims through the exercise of probative logic that he has a well-founded fear of persecution within the meaning of the Convention.
Denial of natural justice/procedural fairness
The fifth ground for review was that natural justice was denied to the applicant when it was allegedly observed by the Tribunal that he was not being assisted by a Migration Agent and that he was unprepared personally to present his own case. It was suggested that the Tribunal should have allowed the applicant an adjournment to prepare his case from a legal point of view, as well as psychologically. This ground was not pressed with great vigour by the applicant at the hearing and, may I say for good reason. There was no evidence to support the contention that the applicant was precluded somehow from presenting his case fully because he was unrepresented. The Act does not provide for representation at such hearings and there was no evidence presented in support of any suggestion that he was overborne or overawed by the whole experience. As the Full Federal Court stated in VAAD v Minister for Immigration and Multicultural Affairs (No. 2) [2004] FCAFC 117 at [45]:
“In addition, it is trite law that the onus of establishing the factual foundation for a claim of a breach of a natural justice or a failure to afford procedural fairness lies in the party alleging the breach.”
This ground is without foundation and must be dismissed.
Section 420 issue
In respect of the issue raised at the hearing concerning the application of s.420 of the Act, which provides that the Tribunal must act according to substantial justice and the merits of the case, it has been long held that such a breach will not found a ground for review under the present judicial review regime (see Vat v Minister for Immigration and Multicultural Affairs [1999] FCA 1762 and see Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300).
Conclusion
The Court fully understands the frustration experienced by the applicant and by his counsel over what appears to be a confirmation of the applicant’s claims in his protection application arising out of recent events in Lebanon. This Court’s jurisdiction is limited to a consideration of the Tribunal’s decision, its reasoning and its fact finding at the time the decision was made in order to determine whether a jurisdictional error was made that would warrant the remedy sought.
I am of the view that, having considered the arguments of the applicant and the first respondent, the Tribunal had not made a jurisdictional error in its decision and it follows that the substantive application must fail.
It also follows that, because of the substantive application’s lack of merit and having regard to my earlier findings that the applicant has failed to adequately explain the delay in issuing proceedings, there is no basis to grant an extension of time. Therefore, the application filed in the High Court is time barred and should be dismissed.
Options open to the applicant
It is open, however, to the applicant to apply to the first respondent pursuant to s.417 of the Act for a substitution of a more favourable decision or, alternatively, pursuant to s.48B(2) of the Act to seek the outcome he desires.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate: Marlene Dixon
Date: 21 February 2007
CORRECTION
Original citation number amended from [2006] FMCA 475 to [2007] FMCA 189.
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