SZBEH v Minister for Immigration
[2005] FMCA 542
•22 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBEH v MINISTER FOR IMMIGRATION | [2005] FMCA 542 |
| MIGRATION – Review of decision of RRT – where the Tribunal found the applicant’s responses unsatisfactory and lacking credibility – where the applicant alleged that the Tribunal committed jurisdictional error of law by misinterpreting the definition of persecution set out in section 91R of the Migration Act – where the decision of the Tribunal was made some two years before that section was inserted into the Migration Act. |
| Federal Magistrates Court Rules 2001 |
| W148/00A v The Minister [2001] FCA 679 SZDFO v The Minister [2004] FC 1192 |
| Applicant: | SZBEH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1586 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 April 2005 |
| Date of Last Submission: | 22 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2005 |
REPRESENTATION
| Counsel for the Respondent: | Rachel Francois |
| Solicitor for the Respondent: | Svetlana Zarucki |
ORDERS
The application is dismissed.
The applicant is to pay the respondent's costs which I assess in the sum of $4250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1586 of 2003
| SZBEH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Lebanon. He arrived in Australia on 26 August 1998. On 7 October 1998 he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs. On 11 November 1998 a delegate of the Minister refused to grant him a protection visa and on 14 December 1998 the applicant sought a review of that decision. The applicant together with his migration agent gave evidence to the Tribunal on 14 April 1999. On 21 April 1999 the Tribunal determined to affirm the decision not to grant a protection visa.
The applicant claimed to have a well-founded fear of persecution for the Convention reasons of religion and political opinion based upon his membership of the Lebanese Forces which are otherwise known as the Phalange or the Christian Lebanese Forces. The applicant is a Maronite Christian. He told the Tribunal that he had in about 1996 entertained some Syrian soldiers at his home and got into discussions with them as to the relative merits of Islam and Christianity. The discussions turned into disputation and he claims that a brawl developed in his home and he was taken away and interrogated for approximately three days. Thereafter, he became suspect by the Syrian Army as an LF spy and was suspect by members of his own community as a possible Syrian spy. By late 1997 he had such a fear of persecution particularly from the Syrians that he decided that he would have to leave Lebanon and come to Australia. He obtained a visa but he did not leave the country for approximately five months. He sent his wife and children to live with his in-laws. He departed Lebanon through the airport claiming that any difficulties he might otherwise have encountered in leaving the country were eliminated by the fact that one of his relations acted as a security guard at the airport.
The Tribunal took up with the applicant a number of these matters and in particular questioned him as to why he would leave his wife and children in Lebanon if he believed things were so dangerous there and why he believed that a low ranking member of the LF would be in any danger from the Syrian forces. In regard to the questions about his wife it is to be noted that the final straw that decided him to leave the country was returning to his home one day and finding the Syrians pointing a gun at his wife.
The Tribunal in its decision notes that during the course of the interview with the applicant he abandoned claims concerning his fear of his own community and also his allegation that he was being persecuted for religious reasons. The Tribunal raised with the applicant some independent country information that was in its possession concerning the situation in Lebanon and in particular the situation of low ranking members of the Lebanese Forces who had not involved themselves in various capital crimes or otherwise done anything to antagonise the Syrians. The Tribunal felt that the applicant's responses were unsatisfactory and led it to a view that his claims lacked credibility. At [CB 79] the Tribunal summed up its views as follows:
Given the above independent evidence on the toleration of non-violent LF activity the applicant's claims of being targeted for being an ordinary LF supporter lacked credibility particularly given his lack of political profile. I am of the opinion that his claims of being interrogated, detained, accused and abused of being an anti-Syrian spy have been fabricated. If, for argument's sake, he was being persecuted as he claims, I do not consider that he would have, on the one hand, delayed leaving Lebanon for five months after getting his travel papers and visa or, on the other hand, that he would leave his family behind to face "very likely" death
In summary, I find that the applicant was not being persecuted for reasons of religious belief or by the LF and I do not accept that he had been and still faces persecution by the Syrians for being an ordinary LF supporter. I am not satisfied, on the evidence before me, that he has a well-founded fear of persecution in Lebanon. I am of the opinion that he has fabricated an account of persecution in order to substantiate an application for a protection visa and that the letter given to the Tribunal is a self-serving attempt to bolster his claims. [The letter referred to can be found at [CB 65] and [CB 66]].
Although the decision of the Tribunal was made in April 1999, the applicant did not in fact seek judicial review of that decision until
12 August 2003, some four years later. His ground for seeking judicial review is in the following terms:
The second respondent committed jurisdictional error of law by misinterpreting the definition of persecution set out in section 91R of the Migration Act (1958), and as a result asked itself the wrong question in purporting to determine whether Australia had protection obligations in respect of the applicant.
The difficulty I have with an application in this form is that section 91R was inserted into the Migration Act in 2001, some two years after the decision in question. It could be argued that in those circumstances there really was nothing to review, but I have listened to the applicant and considered the Tribunal's decision independently of his application. Today the applicant told me that the Tribunal had made mistakes in the way in which it had considered his evidence and in particular his evidence relating to the dangers that might occur to an ordinary member of the LF. This, of course, is a matter which goes to merits and the applicant might be assisted, particularly when he considers an appeal from this decision, by the views expressed by Allsop J in SZDFO v The Minister [2004] FC 1192, where his honour said at:
[8] The structure of the legislation, being the Migration Act and in particular section 474 of that Act, as interpreted by the High Court in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 only entitles the Federal Magistrates Court or this court to interfere with what the Tribunal has done if there is found to be what is referred to as a jurisdictional error.
[9] What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task. That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with. Examples of that kind of error are as follows: that the Tribunal has misunderstood the correct question that it should be dealing with; that the Tribunal has failed to deal with the claims as they are put by the applicant; that the Tribunal has failed to afford the applicant procedural fairness in the way in which it dealt with the matter; that the Tribunal failed to take into account a consideration the law made compulsory to consider; and that the Tribunal took into a consideration the law made compulsory not to consider.
[10] These are the main examples. Conformably with High Court authority, factual error is rarely reflective of jurisdictional error...
[12] It should be plain, I hope, from what I have said that it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations.
The Tribunal has the responsibility to find the relevant facts, enabling it to decide whether or not it is satisfied that the applicant is a person to whom Australia owes protection obligations. Among the facts it has to find is whether or not the applicant is a credible witness. As the Full Court said in W148/00A v The Minister [2001] FCA 679 at [64]:
A finding as to credibility is a finding of fact and as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against or even strongly against the finding.
The Tribunal was therefore entitled to take the view based upon the evidence given by the applicant and his actions, in particular those actions to which the Tribunal referred and which have been rehearsed in these reasons, that it did not believe the applicant. There is nothing I am able to do about that decision. The applicant has not provided me with any other grounds upon which I am asked to decide whether or not a jurisdictional error occurred. I have read the reasons for decision and I am satisfied that the applicant was given every opportunity to present his case in the best light, that any matters which were raised by the Tribunal with him, were raised in a procedurally fair manner. I note that in this regard the applicant's migration agent was offered an opportunity to comment further upon any matters raised in the hearing in writing but did not do so.
In all the circumstances this application must be dismissed. I dismiss the application and I order that the applicant 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 seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
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