SZCJV v Minister for Immigration
[2005] FMCA 1853
•7 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCJV v MINISTER FOR IMMIGRATION | [2005] FMCA 1853 |
| MIGRATION – Review of decision of Refugee Review Tribunal – where Tribunal finds “no subjective fear” – where Tribunal relies on independent country information. |
| Migration Act 1958, s.48B Federal Magistrates Court Rules 2001 |
| Chan v Minister for Immigration (1980) 169 CLR 379 B41 of 2003 [2004] FCA 30 |
| Applicant: | SZCJV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG16 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 7 December 2005 |
| Date of Last Submission: | 7 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant pay the respondent’s costs in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG16 of 2004
| SZCJV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Lebanon. He first arrived in Australia on 10 November 2001. It would appear that his arrival was based upon his holding of a spouse visa. He appears to have left Australia and then returned on 13 June 2003. On 23 June 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 22 July 2003 a delegate of the Minister refused to grant a protection visa and on 18 August 2003 the applicant applied for review of that decision.
The applicant attended a hearing before the Refugee Review Tribunal on 5 November 2003. On 6 November 2003 the Tribunal determined to affirm the decision not to grant him a protection visa and it handed down that decision on 3 December 2003.
The applicant's claim to have a well-founded fear of persecution for the Convention reason of political opinion arises out of his support for the right wing militia group known as the Lebanese Forces (“LF”). Although he told the Tribunal that he was not an active member of the LF he claimed that he was targeted by the Syrian forces as a result of his support for the LF and because of his father's support for Michael Aoun, the militia leader who was at that time exiled in France.
The persecution complained of by the applicant appears to be threats made to him by members of the Syrian Forces (SF) which occurred both before the time he came to Australia for the first time and upon his return to Lebanon.
In his application to this court the applicant complains that the Tribunal did not understand the proper definition of persecution. It would appear that this claim is associated with the fact that what he alleges occurred to him did not involve any physical assault upon his person but consisted of threats which had they been carried out would have involved such assault.
However, as Mr Smith submits, this ground of complaint is not to the point because the Tribunal determined, after considering the evidence given by the applicant, and weighing it against country information available to it, that the applicant's history of problems with the SF did not exist. As the Tribunal says at [CB 64]:
“The Tribunal finds that there are numerous and substantial conflicts between the applicant's assertions and that of ICI so much so as to amount to a finding that what is claimed has no factual bases and that his fears, for the most part, stem from speculation that he might not be able to find a job if he returns to Lebanon.”
The Tribunal came to the conclusion that on the totality of the evidence before it the applicant had no genuine subjective fear of persecution:
“This finding is based on the volume of discrepancies between the applicant's assertions and ICI identified above, the lack of supporting detail to the application generally and the vague, unconvincing and speculative nature of the answers to the Tribunal's questions.”
The applicant argued in his application that the Tribunal's findings were based largely on general independent information, with little consideration to his claims. A perusal of the reasons for decision and the court book itself will make it clear that the applicant's claims were considered by the Tribunal and he was questioned upon them. I am unable to accept the applicant's argument in this regard.
The Tribunal has a responsibility to satisfy itself concerning the applicant's claims. In order to do that it is entitled to rely upon independent country information, as well as its own knowledge of the situation in the particular country from which the applicant hails. Whilst the applicant has no burden of proof, he is required to provide the Tribunal with sufficient evidence to enable it to reach the state of satisfaction that is required of it by the Act.
The Tribunal is entitled to prefer the evidence from the independent country information over that provided by the applicant. And its doing so does not constitute any error, let alone a jurisdictional error. As McHugh J said in Chan v Minister for Immigration (1980) 169 CLR 379 at [428]:
“It is unlikely, therefore, that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality.”
Before me today the applicant gave me a long history of complaint against his migration agent. The complaints themselves are on the transcript and available to be read, if necessary. The migration agent is not named. The complaints appear to be vague and centred around demands for money. It is now well established that the failure of a migration agent or the failure of an applicant to take advice given to him by a migration agent or indeed, the taking of advice given to an applicant by a migration agent, does not constitute jurisdictional error on the part of the Tribunal; B41 of 2003 [2004] FCA 30. If the applicant has a genuine claim against his migration agent he is entitled to take that up with the relevant authority and request the Minister to grant him an opportunity to re-make his application under s.48B of the Migration Act 1956 (Cth). That is not a matter for this court.
Whilst it might be suggested that given the doubt surrounding the validity of a finding of "no subjective fear" expressed by Professor Hathaway and others, the Tribunal might have better confined itself to an expression of "nothing to fear" based upon the evidence it had. This suggested infelicity of expression does not render the decision invalid by virtue of any jurisdictional error. It is still the law in Australia that there are two elements to a well-founded fear of persecution, subjective and objective.
I dismiss the application. I order that the applicant pay the respondent’s costs in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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