SZAOM v Minister for Immigration

[2004] FMCA 292

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAOM v MINISTER FOR IMMIGRATION [2004] FMCA 292

MIGRATION – Review of Refugee Review Tribunal decision – applicant claiming persecution in Lebanon from various sources – whether the RRT proceedings were fair – whether the RRT should have called the applicant’s sister as a witness or granted an adjournment for him to do so – whether the RRT decision unreasonable by reference to its finding on the arrest of a relative of the applicant by Israeli forces – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.36(2), 474, 476

Appellant S106 of 2002 v Minister for Immigration [2003] HCA 30
Fernando v Minister for Immigration [1999] FCA 480
Minister for Immigration; Ex parte Applicant S20/2003 (2003) 198 ALR 59
Minister for Immigration v Indatissa [2001] FCA 181
Minister for Immigration v Rajamanikkam (2002) 210 CLR 222
Morgani v Minister for Immigration [2003] FMCA 364
NANJ of 2002 v Minister for Immigration [2002] FCA 1138
NARE v Minister for Immigration [2003] FCA 97
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration; Ex parte Applicant S20/2003 (2003) 198 ALR 59
W360/01A v Minister for Immigration [2002] FCAFC 211

Applicant: SZAOM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ793 of 2003

Delivered on: 7 May 2004

Delivered at: Sydney

Hearing date: 7 May 2004

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Michael Jones, solicitor

Counsel for the Respondent: Mr M Wigney

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ793 of 2003

SZAOM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 6 February 2001 and handed down on 27 February 2001.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Lebanon and made claims of persecution essentially on the basis if imputed political belief or possibly also religion.

2. The relevant background facts are adequately summarised in written submissions prepared on behalf of the Minister by Mr Wigney.  I adopt paragraphs 1, 2 and 3 of those written submissions for the purposes of this judgment:

   The applicant is a citizen of Lebanon.  He arrived in Australia on 1 June 7 February 1995 and applied for Protection (Class XA) Visas on 7 July 1995. 

   Section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). In general terms Australia has protection obligations to refugees. A refugee is a person who owing to a 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, unwilling , to avail himself or herself of the protection of that country.[1]

   ^[1]  Article 1A(2) of the Convention.

   The applicant’s application for protection visas was based on a claim that he feared persecution in Lebanon on the grounds of his religion (Christian Maronite), membership of a particular social group and political opinion.[2]  The applicant claimed that he had at various times been detained and questioned by Hezbollah and the Syrian occupying forces, accused of being a spy for Israel and only released on the understanding that he would act as a spy against the South Lebanese army.  The applicant claimed that his brother was in the South Lebanese army.

   ^[2] The applicant’s claims were initially set out in a statement which accompanied the visa application: court book, pages 29-37.

   On 22 October 1996 the applicant’s visa applications were refused by a delegate of the respondent.[3]  The delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.

   ^[3]  The decision record is at court book, pages 53-59.  The delegate had interviewed the applicant in relation to his claims.

   Refugee Review Tribunal proceedings

   On 19 November 1996, the applicant applied to the RRT for a review of the delegate’s decision.  Written submissions prepared by the applicant’s migration agent which responded to a number of findings made by the delegate were in due course lodged with the RRT (court book, pages 66-72).

   A hearing was convened before the RRT, however the member that constituted the RRT at that hearing left the RRT before determining the matter.  A subsequent hearing invitation was sent to the applicant and a second hearing was convened on 7 November 2000 at which the applicant and a witness called by the applicant gave oral evidence.[4]

   ^[4]  The transcript of the hearing had been prepared and will be tendered having regard to the grounds of review.

   On 27 February 2001 the RRT handed down its decision affirming the decision of the delegate refusing the applicant’s visa application (court book, pages 99-121).

   The RRT’s decision and reasons

   The RRT handed down lengthy and detailed reasons for its decision.  The essence of its reasons for affirming the decision was that the RRT did not accept that the applicant was telling the truth about his experiences in Lebanon.  It found the applicant’s “overall story” was implausible and that the had fabricated his claims and was not a credible witness (court book, page 120.3).

   The RRT gave detailed reasons for why it rejected the applicants’ factual claims.  Its reasons included:

   a)observations about the applicant’s demeanour when giving evidence - in particular that he “gave his evidence in a difficult, disjointed and haphazard manner;” (court book, page 118.7)

   b)there were “serious changes in significant aspects of the [applicant’s] story as time progressed” (court book, page 118.8) - in particular about who detained him and when and for what duration;[5]

   c)a number of aspects of his claims were implausible and unbelievable - in particular the RRT doubted that someone who had worked as a kitchen hand and in a flower shop and who had only briefly visited his brother who was in the South Lebanon army would be of interest to Hezbollah or the Syrian forces or would be recruited as a possible spy or informer.[6]

   The RRT’s ultimate factual finding was that it was not satisfied on the evidence before it that the applicants had a well-founded fear of persecution for a Convention reason and as a result the RRT was not satisfied that the applicants were persons to whom Australia has protection obligations under the Convention and that therefore they does not satisfy the criterion set out in s.36(2) of the Act.

   ^[5] Court book, pages 119.2-4; the RRT gave a full account of the applicant’s written claims, his claims during the interview with the delegate and his oral evidence and the differences and inconsistencies that emerged between these version at court book, pages 102-107.

   ^[6]  Court book, page 119.1 - see also 119.5-120.2 where the RRT refers to other implausibilities in the applicant’s evidence.  The Tribunal also refers to some of the implausibilities at court book, pages 102-107.

3. The matter proceeded today on the basis of an amended application filed by leave in court today, the amended application is supported by an exhibit A1 being an extract of the transcript of the hearing before the RRT. The tender of the exhibit and the presentation of the amended application in court were not opposed on behalf of the Minister. Indeed, Mr Wigney had prior notice of them and anticipated that the amended application would be received in preparing his written submissions. Mr Wigney, in paragraph 4 of his written submissions adequately summarises the amended application and also accurately sets out the effect of s.474(1) of the Migration Act. I adopt those paragraphs for the purposes of this judgment:

   The applicants filed an application for review of the RRT’s decision on 8 May 2003 - over two months after the RRT handed down its decision.  The respondent has filed a Notice of Objection to Competency.  It is accepted that the competency of the proceedings can only be determined after the determination of whether there is a jurisdictional error in the way that the RRT considered and decided the review application.[7] 

   The applicant’s solicitor has since notified the respondent that it will seek leave at the hearing to file an amended application.  These submissions proceed on the basis that that will occur and address the grounds in the proposed amended application.

   The amended application contains three grounds which may be summarised as follows:

   (1)the RRT failed to exercise its jurisdiction because it did not give the applicant a proper opportunity to give evidence and present arguments - in effect an allegation of denial of procedural fairness or natural justice;

   (2)one of the factual findings made by the RRT was “so unreasonable that no reasonable person could have made such a finding;”

   (3)one of the factual findings made by the RRT (the same one attacked in ground 2) was not based on any supporting evidence available to the RRT.

   As at the date these submissions were prepared the applicants have not filed and served written submissions as directed by the Court. 

   ^[7]  Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476

4. The first ground of review is an assertion of procedural unfairness.  It is in two parts but only the first part was seriously pressed.  The second part is an assertion that the RRT did not give the sole witness called by the applicant before the RRT, apart from himself, the proper opportunity to speak and give evidence.  There is in my view no substance to that assertion on the basis of what appears in the transcript forming exhibit A1. 

5. The first part of the first ground advanced in the amended application however, requires closer attention.  The assertion is that the RRT, on forming the view that the applicant's sister might be able to give relevant evidence in relation to the application, should have made arrangements for or permitted the applicant to call her as a witness.  Exhibit A1 establishes that there was a discussion between the presiding member and the applicant about the witness who had been called by the applicant.  On pages 14 and 15 of exhibit A1 the presiding member discussed with the applicant through an interpreter what evidence the witness would give and what use it would be.  It transpired that the witness was alleged to have had some familiarity with the harm asserted by the applicant but that knowledge was derived second-hand.  On the bottom of page 15 the presiding member said:

   Because the best that Mr Haraby [the witness actually called Mr Hereibeh] can tell me are things that you have told him or your relatives have told him and what he has read in papers that you have shown him.

   THE INTERPRETER: But this is the truth.

   PRESIDING MEMBER: Yes but if you had someone else who can give evidence, such as your sister, who would know things directly from your family that she is aware of, logic would indicate that maybe you should have brought them along.

   The applicant then apparently said in English:

   Yes, I know but before I would let my sister come she wanted to‑‑‑- -

   The interpreter then interpreted what was then said apparently in Arabic:

   He said if you want to adjourn it I can let my sister come to give her evidence or something.

   PRESIDING MEMBER: I don't [think] I will be adjourning it.  Let's get Mr Haraby in and we can see what he can tell us.

6. The presiding member then received the evidence from that witness.  There was no adjournment and the applicant's sister was not called. 

7. Mr Jones, for the applicant, took me to three authorities which he submitted supported the proposition that the failure on the part of the RRT to arrange for or permit the applicant's sister to be called establishes procedural unfairness.  The most important of those is the decision of the Full Federal Court in W360/01A v Minister for Immigration [2002] FCAFC 211, in particular at paragraph 3. The authority is either referred to or supported in the later decisions of NARE v Minister for Immigration [2003] FCA 97 and also NANJ of 2002 v Minister for Immigration [2002] FCA 1138. I accept from that authority the proposition that if it is asserted by an applicant, or if it appears to the RRT, that a witness is available and able to give evidence having a bearing of some substance on the outcome of an application, the RRT should give a reasonable opportunity to the applicant to produce that witness. If the RRT fails to give an applicant that reasonable opportunity the result may be procedurally unfair.

8. The question is what is a “reasonable opportunity”.  The question also is whether the applicant's sister was a witness available and able to give evidence having some bearing on the outcome of the application.  The court book at page 79 discloses that the applicant was sent and responded to a hearing invitation.  In his response the applicant stated that he did want to come to the hearing but ticked the box "No" in answer to the question, "Do you want the Tribunal to take oral evidence from any witnesses?".  However, he ticked the box "Yes" to the question "Do you want to bring someone with you to the hearing?" and gave the name of Mr Hereibeh.  As matters turned out the applicant intended that Mr Hereibeh would not simply accompany him to the hearing but would give evidence.  If the presiding member had refused to receive any evidence from Mr Hereibeh in those circumstances, that may well have established procedural unfairness.  However, the presiding member did receive Mr Hereibeh’s evidence.

9. Having regard to the limited information available from Mr Hereibeh and how he obtained it, it appeared to the presiding member that his evidence would be of little assistance.  Indeed, his evidence hardly rates a mention in the decision of the RRT.  It occurred to the presiding member that the applicant's sister might have been a more useful witness.  The applicant appeared to agree with the presiding member but stated that his sister had family commitments.  He also referred to his brother-in-law who had work commitments.  It is unclear from that whether the applicant had previously considered calling either of these people as witnesses on his behalf or whether the issue had only occurred to him at the hearing.  The applicant's case would have been stronger if he had in these proceedings produced affidavit evidence of the circumstances in which he either considered or failed to consider the issue and, if he was able, to produce evidence from his sister as to what she would have said if she had been called as a witness.  However, no such affidavit evidence was produced. 

10. In the circumstances, I am left to speculate about what use the applicant's sister may have been to him.  From the available evidence, I am not satisfied that the sister would have been able to give any relevant evidence.  The presiding member briefly speculated on the possibility but it does not seem to me that he drew any firm conclusion.  I find on the basis of the available evidence that while it is possible that the applicant's sister may have been able to give some evidence of assistance to the applicant, that is by no means certain.  On the balance of probabilities, I am not satisfied that she would have.

11. In addition, I am satisfied that the applicant was given a reasonable opportunity to produce his sister prior to the hearing if he had wanted to.  The RRT met all of its statutory obligations in relation to preparation for the hearing.  The applicant plainly gave some consideration to who he wanted as a witness in completing his response to the hearing invitation form.  Prior to the hearing the applicant elected not to call anyone apart from Mr Hereibeh.  I would have thought that even without any legal training it would have occurred to the applicant that a member of his family might be able to assist him in providing information to the RRT about the circumstances of his family in Lebanon.

12. In my view, having been given an opportunity to call his sister prior to hearing and having not taken it, procedural fairness did not oblige the presiding member to grant a further opportunity which would, it appears, have necessitated an adjournment.  I find that the first ground of review is not substantiated.

13. The second and third grounds of review are related.  These are that the RRT erred in finding that the Israeli authorities would never detain a member of the South Lebanon Army and that error rendered the decision so unreasonable that no reasonable person could have made it.  In addition, it is asserted that the finding of the RRT that the Israeli authorities would never detain a member of the South Lebanon Army is not based on any supporting evidence available to the RRT.

14. It is clear whether unreasonableness is available as a ground of review in migration proceedings, bearing in mind that the task undertaken by the RRT is not so much an exercise of discretion as a fact-finding exercise.  However, the High Court decision in Appellant S106 of 2002 v Minister for Immigration [2003] HCA 30 (also known as Applicant S20 of 2002 v Minister for Immigration) establishes that even in a fact finding exercise, the jurisdiction of the RRT may miscarry if the decision maker acts perversely or absurdly or misunderstands the task that he has to perform or applies the wrong law or overlooks a relevant consideration, or perhaps for other reasons.  It appears from paragraphs 5 and 9 of the judgment of the Chief Justice in that case that irrationality, while it might point to jurisdictional error, does not of itself establish jurisdictional error.  That proposition is also supported in the joint judgment of McHugh and Gummow JJ at paragraph 36.

15. The issue was addressed in this Court in Morgani v Minister for Immigration [2003] FMCA 364 by Federal Magistrate Raphael. That was a case concerning the cancellation of a visa but, nevertheless, in my view, the observations by Raphael FM at paragraphs 15 to 18 of that decision are apposite. In my view, no jurisdictional error is demonstrated by the finding of the RRT. The presiding member said on pages 119 and 120 of the court book:

    Also, the story and reason given as to why the family members were arrested by the Israeli’s makes no sense.  It makes no sense that the applicant's brothers and sister-in-law would have been arrested by the Israelis.  One of the brothers, … was allegedly an officer in the SLA which is known to work with and be a supporter of Israel in its then occupied zone.  It makes no sense that they arrest an SLA officer.  In relation to the newspaper report, I note that it appeared, according to the applicant, in a Lebanese newspaper in Australia.  The source of the story is unknown and the information in it may or may not be true.  Despite my concerns I am prepared to accept that it is a true report of an incident in Lebanon in late 1997 and that the persons involved are two brothers and a sister-in-law of the applicant.  I note the applicant's evidence that the sister-in-law is now released and back in Beirut, there is also an article which refers to this.  Neither article states why they were arrested and detained.  The applicant claims that the brother … is the one who is an officer in the SLA.  I do not accept that an officer of the SLA would have been arrested by the Israeli Forces, and imprisoned in Israel.  All of the independent evidence indicates that they were in alliance.  There is no evidence to suggest that Israeli Forces targeted SLA officers.  Whilst I accept that these reports are true I do not accept that the unfortunate arrest and detention of his relatives in the south of Lebanon has any adverse bearing on the applicant if he were to return to Lebanon.  In accepting the articles as true I also find that the applicant's brother… was not an officer in the SLA.  I find that he has fabricated that claim. 

1. As Mr Jones pointed out in his submissions, it does not necessarily follow from the fact that a person is arrested by Israeli forces in the south of Lebanon that the person is not a member of the South Lebanon Army.  It is possible that, for one reason or another, the Israelis might choose to arrest a member of the former South Lebanon Army.  However, it does not follow from that, that the RRT’s finding is perverse, absurd or even irrational.  The fact that the Israelis were allied to the SLA would reasonably indicate that there was no predisposition on the part of the Israelis to detain or arrest a member of the SLA.  While one may argue about the logic of the conclusion reached by the presiding member, the conclusion was not devoid of any rational basis.  In addition, it seems to me that even if the presiding member had accepted that the applicant's brother had been a member of the SLA and was arrested by the Israelis, the conclusion would not necessarily have assisted the applicant.

2. The applicant had told a rather elaborate story involving detention and harm of him or members of his family by Hezbollah, by the Syrian forces in Lebanon and by the Israelis.  Even if it were true that the applicant's brother was a member of the SLA and was arrested by the Israelis, that fact would not have been likely to increase the risk of harm at the hands of the Syrian forces and by Hezbollah.  It also needs to be borne in mind that there were various reasons why the applicant's claims were rejected on credibility grounds.  The presiding member said at the outset of his findings and reasons that the applicant gave his evidence in a difficult, disjointed and haphazard manner.  The presiding member also said that the applicant's story had repeatedly changed.  In other words, the presentation of the claims by the applicant was unpersuasive and the claims themselves were internally inconsistent as presented over time.

3. Those conclusions reached by the presiding member would have provided a rational basis for the rejection of the applicant's claims as a whole.  The resort by the presiding member to the reasoning that I have read in relation to the asserted action by the Israelis, while it added to the adverse conclusions on credibility, was not in my view the single central factor leading to the rejection of the claim.  I think it highly likely that, even without that finding, the claim would have been rejected.

4. I find the submissions presented by Mr Wigney, in relation to grounds 2 and 3, persuasive.  I adopt for completeness his paragraph 6.6-6.8 from his written submissions:

   In this ground the applicant challenges one factual finding made by the RRT.  This particular finding - that it did not accept that an officer of the South Lebanon army would have been arrested by the Israeli forces and imprisoned in Israeli - was open to the RRT on the material before it.  According to the RRT”S reasons, it was based on its finding that the South Lebanon army and the Israeli forces were allies[8] and the fact that there was no evidence before it to suggest that “Israeli forces targeted SLA officers.” (court book, page 120.1).  Even if the applicant disagrees with this emphatically,[9] that does not demonstrate that the finding was so unreasonable that no reasonable person could have made such a finding.  Still less does it demonstrate jurisdictional error.[10]

   At its highest the applicant’s contention amounts to a contention that the RRT made an error of fact. That does not demonstrate jurisdictional error. That is so particularly because the factual finding that is attacked is not a finding that was important, let alone critical to the RRT’s ultimate findings and decision. Insofar as the finding had any role in the RRT’s decision and reasoning, it was, to use the analogies used in the context of the “no evidence” ground in the old s.476(1)(g) of the Act, a “strand in the net”, not a “link in the chain” of the RRT’s reasoning.[11]  As such any error relating to it had no legal and no jurisdictional significance.

   Ground 3

   This ground raises the same issues as ground 2.  The finding was open to the RRT on the material before it and in any event not critical or even important to the ultimate findings and decision of the RRT.

   ^[8]  As to which see, inter alia, the information referred to at court book, pages 110.5-111.1.

   ^[9]  Cf. Re Minister for Immigration; Ex parte Applicant S20/2003 (2003) 198 ALR 59 at [5] per Gleeson CJ.

   ^[10]  Cf. Re Minister for Immigration; Ex parte Applicant S20/2003 (2003) 198 ALR 59 at [9] per Gleeson CJ.

   ^[11]  Minister for Immigration v Indatissa [2001] FCA 181; Fernando v Minister for Immigration [1999] FCA 480 cf. Minister for Immigration v Rajamanikkam (2002) 210 CLR 222

5. I find that grounds 2 and 3 as advanced do not establish any jurisdictional error in the decision of the RRT.  I would add that even if I were wrong in that conclusion, I would be inclined to exercise my discretion not to grant relief to the applicant on the basis of futility, having regard to the overall credibility findings of the RRT and having regard to the fact that the issue of the applicant's brother's arrest by the Israelis would not, in my view, have logically increased the risk to him of harm should he return to Lebanon. 

6. I will dismiss the application.  I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  12 May 2004