SZALZ v Minister for Immigration

[2004] FMCA 275

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZALZ v MINISTER FOR IMMIGRATION [2004] FMCA 275

MIGRATION – Review of RRT decision – where Tribunal found applicant not to be a credible witness – whether Tribunal was obliged to inform applicant that it did not accept her evidence – where applicant argued that on the evidence before it the Tribunal should have reached the necessary state of satisfaction that protection obligations were owed to her – where tribunal found applicant’s claims not corroborated – whether Tribunal failed to consider an aspect of applicant’s claim, that she was more vulnerable to religious persecution because she was a single woman – whether Tribunal should have considered the mental detriment suffered by the applicant when assessing harm.

Abebe v Commonwealth (1999) 197 CLR 510
NAVX v Minister for Immigration [2004] FCA 346
Applicant A v MIMA (1997) 142 ALR 331
MIMA v Respondents S152/2003 [2004] HCA 18
MIMA v Ibrahim (2000) 204 CLR 1
Prahastono v Minister for Immigration  [1997] 50 ALD 345
MIEA v Wu Shan Liang (1996) 185 CLR 54
NAHI v MIMIA [2004] FCAFC 10
NAAH of 2002 v MIMA [2002] FCAFC 354

Applicant: SZALZ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 692 of 2003

Delivered on: 18 May 2004

Delivered at: Sydney

Hearing date: 30 April 2004

Judgment of: Raphael FM

REPRESENTATION

Solicitor for the Applicant: Mr M Jones

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 692 of 2003

SZALZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Lebanon.  She arrived in Australia on 19 September 2001.  On 30 October 2001 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs.  On 24 May 2002 a delegate of the Minister refused to grant a protection visa and on 5 June 2002 the applicant applied for review of that decision.  The applicant attended a hearing before the Tribunal with her adviser.  The Tribunal determined to affirm the decision of the delegate on 10 March 2003 and handed down its decision on 1 April 2003.

2. The claims which the applicant made in seeking the protection of Australia were consistent throughout the various processes which led to the matter being determined by this court.  At all times she put forward the claim originally found in her handwritten statement [CB 18]:

   “Due to the fact that I am a Jehovah’s Witness I have been persecuted by the Syrian and Lebanese authorities. 

   I am under investigation by the Syrian and Lebanese security apparatus.  I am constantly monitored and my movements are severely restricted.

   The Syrian Intelligence have visited my home on a number of occasions since the beginning of last year.  On all these occasions I was not present, however my neighbours who are sympathetic to me warned me about these visits and also informed me that they had been questioned extensively about my religious activity.

   Since my son’s departure from Lebanon I have been increasingly exposed to Syrian and Lebanese intelligence activity also property damage caused by hostile neighbours.”

   At [CB 27] there is found a statutory declaration by the applicant which states at [14]:

   “Since the departure of my son from Lebanon I have been increasingly vulnerable to attacks by neighbours.  I am also an easy target of abuse for Syrian Intelligence officers.”

   And at [17]:

   “I am an extremely vulnerable woman as I no longer have any male protection or the protection of the authorities.  I fear that as a woman living alone and known to be a long time member of Jehovah’s Witness I am an easy target for abuse by neighbours the Syrian and Lebanese authorities.”

3. These matters were debated with the applicant at the hearing and her evidence to the Tribunal and its questioning of her are rehearsed in the first part of the reasons for decision.  There is included within those reasons some country information setting out the situation for members of the Jehovah’s Witness faith in Lebanon.  In its findings and reasons the Tribunal states that it had serious concerns about the applicant’s credibility and in particular did not accept her evidence that the intelligence personnel had visited her on three occasions when she was not there or that it had any serious interest in her.  It did not accept that she was ever under surveillance or investigation by the Lebanese or Syrian authorities. 

4. It is argued by the applicant that the Tribunal came to this conclusion both without available evidence and without providing her with procedural fairness.  The latter complaint was explained as a failure by the Tribunal to put to the applicant that it did not accept her evidence.  In regard to the former matter it is said that there is no contradicting evidence.

5. The authorities are clear that the Tribunal is not required to put every matter upon which it takes issue with the applicant to the applicant. As Callinan J said in Abebe v Commonwealth (1999) 197 CLR 510 at [295]:

   “The Tribunal, in undertaking its essentially investigative function, is not obliged to put, as an adversary in adversarial proceedings might be bound to do, in respect of each and every key matter, an assertion of apparent falsity or unreliability.”

   The Tribunal’s task is to determine whether or not it can reach a state of satisfaction that an applicant is a person to whom Australia has protection obligations: NAVX v Minister for Immigration [2004] FCA 346. In order to do that it is required to consider the evidence given by the applicant. If that evidence falls short of persuading the Tribunal to reach that state of satisfaction then no protection visa can be issued. The applicant put forward her evidence. It consisted of her statement in which she said she had been visited on three occasions by the security services. This statement failed to satisfy the Tribunal. It failed to satisfy the Tribunal because it was not corroborated, because the Tribunal believed that the country information did not support the service’s interest in the applicant and because, if the services were interested in the applicant, they could have found her at her place of work where she had been for twenty years. I cannot see that the Tribunal erred in coming to this conclusion, even if it was a conclusion that another Tribunal may not have come to because it had less concern about the applicant’s credibility.

6. The applicant argues that the Tribunal failed to address her claim to feel vulnerable as a single woman as part of her claim to religious persecution.  In other words it failed to consider that she was putting forward to it that her claims of religious persecution were intensified by the fact that she was a woman without male protection.  In its findings and reasons at [CB 78] the Tribunal states:

   “The applicant’s evidence seems to indicate that she fears to return to Lebanon for two reasons: one reason is her religion, the other is her status as a single woman without male protection, which may constitute a particular social group.  Her adviser has also suggested that she is vulnerable as a single woman living alone, as well as being at risk from hostile neighbours for reason of her religion.

   While the applicant has not explicitly claimed to fear persecution the basis of her membership of a particular social group – for example, a single woman without male protection – the Tribunal has considered whether she has been persecuted for this Convention reason.  There is no evidence that the applicant has been harmed in the past because she was a single woman in Lebanon, nor is the Tribunal satisfied that this might provide a reason for her being serious harm in the future.”

   This statement by the Tribunal would certainly seem to indicate that it has misconstrued the applicant’s claim.  But the difficulty which the applicant faces is that it was not satisfied that she faced persecution.  So that it would not matter how she put her claim, the factual matrix concerning the incidents that had taken place and those that she would fear in the future (for this is the real test) must constitute persecution. As McHugh J commented in Applicant A v MIMA (1997) 142 ALR 331 at 354-5:

   “When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group.”

   The UNHCR Refugees Convention imposes obligations on signatories to provide protection to people who face persecution and who cannot obtain protection in their own countries. It is precisely because such an obligation is imposed that not all acts of harm constitute persecution. In MIMA v Respondents S152/2003 [2004] HCA 18 McHugh J, echoing MIMA v Ibrahim (2000) 204 CLR 1, noted that:

   “The feared harm must be of a serious nature that goes beyond simple discrimination…. It is not to be supposed that the Convention required signatory States to give asylum to persons who were persecuted for a Convention reason but who were unlikely to suffer serious infringement of their rights as human beings. Thus, for the purpose of the Convention, the feared harm will constitute persecution only if it is so oppressive that the individual cannot be expected to tolerate it …”

   Determination of whether the harm feared by the applicant constitutes persecution is the exclusive realm of the Tribunal. As Hill J said in Prahastono v MIMA (1997) 77 FCR 260 at [271] when it comes to deciding whether particular conduct amounts to persecution “the Tribunal is the final arbiter.” As has been held on innumerable occasions, it is not open to the Courts to engage in merits review of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 54; NAHI v MIMIA [2004] FCAFC 10; NAAH of 2002 v MIMA [2002] FCAFC 354. Given that the existence of persecution is an essential element of Article 1A Refugees Convention and that s.91R Migration Act further reiterates the necessity of serious harm, the finding by the Tribunal that the incidents complained of did not amount to persecution is in itself enough to support the finding that no protection obligations were owed to the applicant.

7. The Tribunal at [CB 79] rejected the contention that the conduct in question amounted to persecution:

   “In considering the applicant’s evidence at the hearing the Tribunal formed the impression that the applicant had been subjected to isolated incidents of harassment by her neighbours prior to 2000 but that she felt more distressed by such incidents after her son left.  While the Tribunal acknowledges that incidents of the kind described by the applicant were distressing for the applicant it is not satisfied that they were sufficiently serious as to amount to persecution in a Convention sense.”

   It went on to say at [CB 80] in considering the future:

   “The Tribunal has found that the applicant has been exposed to harassment in the past, but is not satisfied that it was sufficiently serious as to amount to persecution.  There is nothing in the country information available to the Tribunal to suggest that conditions have deteriorated for Jehovah’s Witnesses in Lebanon since the applicant’s departure.  According to the most recent annual report on international religious freedom, Lebanon is perceived in the region as a religiously tolerant country.  The Tribunal is not satisfied that there is a real chance that the applicant will face Convention based persecution if she returns to Lebanon.”

   These views of the Tribunal were expressed in the context of incidents having been said to have occurred after the applicant’s son left her home.

8. The applicant argues that the Tribunal erred in the way in which it assessed the real harm which she claimed that she suffered from as a result of the activities which she had described.  She argued that the Tribunal failed to take into account the serious mental disturbance that had occurred to her which resulted in her having a mental breakdown and requiring attendances upon her doctors and the prescribing of medication which she takes even today.  But this is not the way harm should be assessed.  As Hill J said in Prahastono v Minister for Immigration [1997] 50 ALD 345 at 347:

   “But, while it may be accepted that in this context behaviour could not constitute persecution unless that behaviour was both capable of causing and did in fact give rise to fear in the person seeking refugee status, it does not follow logically that every behaviour which engenders fear in an applicant is thereby persecution.  In other words, if the conduct complained of is not, without reference to its impact upon the applicant for refugee status, persecution, it will not become so if it produces in that person fear.

   …

   As I have already said, fear on the part of a claimant does not turn non-persecution into persecution.  The Tribunal concluded, as it was open to conclude, that the evidence which had happened in the past could not be called persecution.  In arriving at this conclusion there was no necessity to consider the mind of the applicant, even if it may well have been necessary to do so if the acts complained of were otherwise properly to be characterised as persecution.”

   In other words, the test of persecution is objective.  If the harassment that the applicant suffered from her neighbours was not sufficiently serious to constitute persecution that finding cannot be changed because of the more serious affects that it had on the applicant than it might have had on another person.

9. The Tribunal reported at [CB 72]:

   “The applicant was asked about the problems she had after her son left in 2000.  She said that she had the problems she had talked about previously.  Also, her car was damaged and her dog was stolen.  When she filed a complaint about the dog, she was told the police were concerned only with people not dogs.”

10. It seems to me that this extract indicates that the Tribunal did give some attention to the possible affect upon the alleged persecutory treatment of the absence of her son.  It was obviously unable to be satisfied from the applicant’s response that the treatment had been exacerbated.  When this evidence is combined with the Tribunal’s finding that the treatment itself did not constitute persecution I do not believe that it is arguable that the Tribunal’s apparent treatment of the two complaints as independent of each other made any impression upon its findings.

11. The finding concerning the failure of the harassment of the applicant to reach the status of persecution affects the whole of the Tribunal’s decision.  It is the ratio of that decision.  It is a finding which shuts out an argument by the applicant that the Tribunal did not apply the proper test when it said at [CB 79]:

    “If in the fact the applicant were not committed to the practice of her religion, her chief reason for fearing persecution in Lebanon is not valid, in that she could live there without attracting any hostile attention from the community or the authorities, simply by refraining from associating with Jehovah’s Witnesses or preaching that faith.  The Tribunal is not satisfied on the applicant’s evidence that she is committed to the practice of the Jehovah’s Witnesses religion as she claims.”

    This statement appears to ignore the fact that the Tribunal has accepted that the applicant has in the past been the subject of harassment arising out of her religious convictions.  If she was to return to Lebanon her allegiance to Jehovah’s Witnesses would be known to the very people who have already harassed her in the past.  The fact that she may not evince her formerly claimed enthusiasm for the faith would be unlikely to change already ingrained opinions about her.  I believe that if the Tribunal had concluded that the harassment the applicant suffered amounted to persecution then it would have erred in the way in which it undertook its obligations to decide whether she would be the subject of persecution if she returned to the country now or in the reasonably foreseeable future.  But the Tribunal did not so find and so the argument of the applicant is of no utility.

12. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: