SZAHA v Minister for Immigration
[2003] FMCA 306
•18 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAHA v MINISTER FOR IMMIGRATION | [2003] FMCA 306 |
| MIGRATION – Review of RRT decision – application for a protection visa – whether the applicant had a well-founded fear of persecution for a convention reason – where the Tribunal held that there was no real chance of persecution - where the applicant sought an adjournment – where the applicant had already been given one adjournment previously – whether the Tribunal denied the applicant with an opportunity to provide it with documentation – whether there was a denial of procedural fairness. |
Judiciary Act 1903, s.39B
| Applicant: | SZAHA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 391 of 2003 |
| Delivered on: | 18 July 2003 |
| Delivered at: | Sydney |
| Hearing date: | 18 July 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 391 of 2003
| SZAHA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Lebanon. He arrived in Australia on 1 June 1997. He took up employment. After a dispute with his employer the Immigration Department was advised of his existence. He was placed in detention. Shortly thereafter he made an application for a protection visa on 25 August 1999. On 3 September 1999 he asked for this application to be withdrawn and requested that he be deported. That did not occur. He was still in Villawood on
4 January 2000. He lodged a further application for a protection (Class XA) visa. On 18 August 2000 a delegate of the Minister refused to grant a protection visa. On 15 September 2000 the applicant applied for a review of that decision. The applicant then was released from detention.
The review of the decision took place over an extended period commencing in late 2002. By that time the applicant was again in detention. It would appear that he had in fact been in custody since
14 August 2001 in respect to matters which do not appear to be relevant to this application. In any event the Tribunal conducted a hearing into his claims on 7 January 2003 and the applicant was represented by a migration agent who made submissions to the Tribunal. On 17 March 2003 the Tribunal determined to affirm the decision of the delegate.
The applicant sought review of the decision of the Tribunal from this court. The matter was originally set down for hearing in May. Although he at first refused it the applicant later requested assistance under the Minister's scheme for legal assistance to persons seeking review of a decision of the Refugee Review Tribunal. There were difficulties in obtaining that advice because the applicant was indisposed. The original hearing date in May was then adjourned until today, 18 July 2003.
The papers reveal that in the meantime the applicant received advice under the scheme. The applicant then employed his own legal advisers to represent him today.
On 16 June 2003 a letter and affidavits were filed with the court from those solicitors indicating that they had given certain advice to the applicant which he had rejected and requesting that they no longer be retained by him. The solicitors did not appear today.
When this matter was called the applicant indicated that he wished an adjournment. The grounds for that adjournment were twofold. The first was that he no longer had legal representation, and the second was on the grounds of his health. With regard to the latter he showed me a letter from Mr Gary Hardgrave, MP, indicating that an appointment had been made for him to see a cardiologist on 28 August 2003.
I declined to grant an adjournment. It seemed to me that the history of this matter was littered with delay. An adjournment had already been given at the applicant's request. There was no assurance that legal representatives would be employed and would appear on the applicant's behalf. I did not consider the existence of a doctor’s appointment sufficiently indicative of disability to prevent the applicant from making his own case as so many applicants do.
The applicant indicated that he took issue with my decision. He advised that he would appeal it. I felt that it was best if he made his appeal against a substantive decision and so I proceeded to hear the matter. During the course of the hearing the applicant left the bar table indicating that he did not wish to take any further part in the proceedings. I required him to sit in court whilst the case was concluded but in fact he did take further part in the proceedings and responded to Mr Reilly's submissions on behalf of the Minister.
The factual matrix which constitutes the applicant's alleged well founded fear of persecution for the convention reason of political opinion has a lengthy history. There is a long history to the fact which constitute his claim for protection. In about 1983 whilst still a youth, the applicant claims that he was involved in an incident in his village in which some soldiers were killed. Thereafter the applicant claimed that he joined a group known as Tawhid. He had been introduced to one of the leaders of that group, Sheik Shabaan. The applicant became involved with the Sheik and acted as his bodyguard.
The applicant told the Tribunal that in the 1990’s he became involved with the authorities in Lebanon who questioned him concerning his association with the Tawhid movement. He claims to have been tortured and imprisoned.
The applicant also told the Tribunal that in March 1997 he had been arrested and tried in a military court. He said this related to the killing of the soldiers in 1983. Although he managed to obtain his release from detention and then escape into Australia he stated that a sentence of death had been passed upon him in absentia. He claimed that he was an innocent young boy when the events in 1983 occurred. He claimed that he had been told that all matters relating to that incident were closed and he believed that their re-opening was a political action against him. He feared that if he returned to Lebanon he would be executed.
The Tribunal went through the various parts of the applicant's history in some detail. It indicated that there were considerable discrepancies between the applicant's interview with the delegate and his protection visa application [CB 134]. It noted a concern [CB139] that the applicant had not lodged a protection visa for some two years after his arrival in Australia and that the applicant was very vague about his reasons for not doing so. At [CB 144] at the beginning of the Tribunal's findings and reasons the Tribunal says:
"The Tribunal had significant problems with the applicant's credibility. He did not apply for a protection visa until two years after he came to Australia. Having applied for the visa he then withdrew his application saying he wanted to go home because of health problems. These facts would suggest that the applicant was not in fear of persecution in Lebanon when he came to Australia."
Notwithstanding these doubts, the Tribunal then analysed in detail the applicant's history and came to the conclusion that many of the things that he had claimed were indeed plausible. It accepted that the shooting incident occurred. It accepted that the applicant was harassed over a period of several years by the authorities and that in the course of such harassment the applicant was subjected on occasions to serious mistreatment. The Tribunal was satisfied that such harassment and mistreatment were sufficiently serious to amount to persecution in the Convention sense and was prepared to accept that it was inflicted upon the applicant for reasons of a political opinion.
Where the Tribunal parted company with the applicant was in relation to the re-opening of the shooting incident of 1983. The Tribunal was not prepared to accept that this had occurred or that the applicant had been sentenced to death. The applicant had produced certain documentation to the Tribunal but this documentation only indicated that the applicant had been the subject of disciplinary proceedings by the army in 1997, shortly before his departure. The proceedings in question seem to be proceedings for "a misdemeanour". The applicant was sentenced to six months detention for this misdemeanour.
At [CB 147] the Tribunal makes the following finding.
“ The Tribunal has considered whether there is a real chance that the applicant will suffer convention based persecution if he returns to Lebanon in the foreseeable future. The applicant is, in the Tribunal's view, likely to be questioned and detailed on return to Lebanon in connection with the judgment passed against him by a military court. This conviction however has not been demonstrated to the Tribunal's satisfaction to be convention related.
The authorities may have had an interest in the applicant in the past because of his association with Sheik Shabaan. The Sheik, however, is now deceased, and there is no indication in the evidence given to the Tribunal that the applicant was involved in political activity on behalf of Tawhid.
In these circumstances, the Tribunal considers that any chance that the applicant will be seriously harmed for reasons of his association with Sheik Shabaan, or, by implication, for his imputed political opinion, is remote and far fetched. The Tribunal has already indicated that it is not satisfied that there is now any real chance that the applicant would be of any current interest, either to the authorities or to the families of the soldiers, or that he will face any adverse treatment in relation to the killing of soldiers in or about 1983.
The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for a convention reason if he returns to Lebanon in the foreseeable future. It is therefore not satisfied that the applicant's fear of persecution is well founded.”
The Tribunal then goes on to consider the applicant's non-compliance with his military service obligations even though that was not a matter raised by the applicant in his claim.
The application lodged by the applicant for review of the Tribunal's decision is in the following form.
“ I would like to appeal my case on the protection visa that was applied for 17 March, 2003. The Tribunal stated that nothing seriously would happen if the applicant went back to Lebanon, however the case is still very serious according to the news I received from Lebanon. I would be very seriously punished (death penalty) if I went back to Lebanon. My request is that if I can't get a protection visa to stay in Australia then I would like to ask the Federal Magistrate's Court of Australia to deport me to Turkey, that way I can apply to stay in Turkey where my family and I are safe and sound and start a fresh new life. I would like to say for the Federal Court of Australia to take into consideration of my life which is in their hands and I hope that they make a decision that their conscience will not let them or me down. Note: I have also got a few family friends in Turkey. Please take this into consideration.”
It will be seen that this document does not allege any matters upon which review might be granted under s.39B of the Judiciary Act 1903.
I asked the applicant what he wished to tell me about the manner in which the Tribunal came to its conclusions. He said (and the transcript will show) quite a lot, but the most significant matter related to a claim that the Tribunal did not give him an opportunity to provide it with documentation that he believed he could obtain. That is not entirely the case.
At [CB 142] the Tribunal says this:
“On 12 February 2003 the applicant's adviser wrote to the Tribunal saying that the applicant has asked his family to obtain further documents in relation to his conviction. He says that they are having difficulty in obtaining the documents from the Lebanese authorities. On 17 February 2003 the applicant contacted the Tribunal by telephone saying that his family has arranged to obtain a copy of his army court file which will be sent to the applicant. He says that this will be in his possession no later than 28 February, 2003.
On 17 February 2003 the Tribunal wrote to the applicant advising that it would not proceed to a decision before 5 March 2003 but that if the applicant had not supplied documents by that date, the Tribunal would make a decision without further advice. On 27 February 2003 the applicant sent a fax to the Tribunal saying that he and his fiance were to be married as soon as possible while he is in detention. No documents were provided to the Tribunal as promised by the applicant.”
The applicant did not attempt to provide me with any documents even if these would have been admissible. Instead he pointed to several letters which he had written to the Lebanese Embassy, and the Lebanese President which he said requested the documents. However, the earliest of these letters was written on 20 March 2003 and most of them were written either in May or in June of this year.
It is therefore not unreasonable for the Tribunal to have adopted the course which it did and decide the matter on the facts as they were then before it. I could not say that there was any lack of procedural fairness in what the Tribunal did in that regard.
The other matters raised by the applicant were matters going to the decision itself and the facts upon which that decision was based. It is, of course, not within the power of this court to remake the decision of the Tribunal based upon facts that the court would have found or views as to the applicant's fear of persecution that the Tribunal did not share. In those circumstances I must dismiss this application which I do.
I order that the applicant shall pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM
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