SZCOG v Minister for Immigration
[2005] FMCA 1095
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCOG v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1095 |
| MIGRATION – Review of decision of RRT – whether the Tribunal breached the natural justice hearing rule and failed to comply with mandatory statutory procedures – whether refusal to undergo compulsory military service not arising out of conscientious objection can found a claim of Convention based persecution. |
| SAAP v Minister for Immigration [2005] HCA 24 Erduran v Minister for Immigration [2002] FCA 814 Minister for Immigration v Yusuf [2001] HCA 30 Gholami v Minister for Immigration [2001] FCA 109 |
| Applicant: | SZCOG |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 187 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 July 2005 |
| Date of Last Submission: | 29 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2005 |
REPRESENTATION
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs assessed in the sum of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 187 of 2004
| SZCOG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant claims he is a stateless person but the Tribunal has determined that he is a citizen of Syria born in Lebanon who arrived in Australia on 31 May 1999. On 29 June 1999 he lodged an application for a Protection (class AZ) Visa to the Department of Immigration & Multicultural Affairs. On 26 August 1999 a delegate of the Minister refused to grant him a protection visa and on 6 September 1999 the applicant applied for review of that decision. On 22 August 2001 the Tribunal held a hearing which the applicant attended. During the course of that hearing certain matters were discussed with him. These related to the conflict between the applicant's original statements and matters which he referred to at the Tribunal. With remarkable prescience the Tribunal complied with the strictures laid down by the High Court in SAAP v Minister for Immigration [2005] HCA 24 and sent on 28 August 2001 a letter to the applicant advising him of information that would, subject to any comments he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The applicant responded to that letter with his own letter of some three pages and on 16 January 2002 the Tribunal determined to affirm the decision not to grant a protection visa and handed down that decision on 30 January 2002.
Today in court the applicant filed a further amended application which he admitted had been drawn up for him by another person. The only ground set out in the further amended application is that the decision was void for jurisdictional error being a breach of the natural justice hearing rule and non-compliance by the Tribunal with mandatory statutory procedures. The particulars refer to the fact that the letter sent on 28 August 2001 was sent to an address other than the last address for service provided to the Tribunal by the applicant. If this had been the case it may well have provided a reason for review to be granted but in fact the situation is different. I received in court an affidavit dated 28 July 2005 from Jennifer Bautista, the solicitor for the respondent, annexed to which was a change of applicant contact information form completed by the applicant on 22 August 2001 providing the very address to which the letter was sent. The applicant was shown this document and had the good grace to confirm that it was indeed written by him and was correct. It would therefore be open to me to dismiss the application on the grounds that the only matter raised by it was clearly insupportable; but in fairness to the applicant and in order to prevent unnecessary further legal proceedings I will deal with the application as I believe the applicant makes it.
At CB [116] the Tribunal sets out in dot points the applicant's claims which, relevantly, are that he was born in Lebanon although he is a Syrian; he did not wish to fight for the Syrian military; in 1983 he spent six weeks with Fatah; he traveled to Italy and then France where he applied for a posting with the French Foreign Legion but was refused; he returned to Italy and then to Syria in 1984; he returned to France where he applied for refugee status which was refused in 1986 and on appeal in 1988 and following a re-opening by the UNHCR was further refused in 1993. The grounds upon which the applicant claimed he had a well-founded fear of persecution were three-fold. First, he said the he did not want to return to Syria because he would be prosecuted for failing to undertake his military service and would be thrown into gaol. Secondly, he said he did not want to return to Syria because he had been a member of Fatah and that would also cause him problems. Finally, he said that he did not wish to return to Syria because him and his family were long time members of the Muslim Brotherhood and that was a very serious matter so far as Syria was concerned and would lead to his persecution.
It was this latter matter that was raised by the Tribunal in the letter of 28 August 2001 because the Tribunal said:
“You abandoned your claim that you feared harm because of your involvement with Fatah in the past, and instead, made a new claim at your hearing that you feared harm in Syria because of your suspected involvement with the Moslem Brotherhood.
You made no mention of this claim previously in your application to the Department of Immigration nor did you make any mention of it in your application for asylum in France or the documents you prepared for lodgment in the United States.”
The applicant responded to those questions indicating firstly that he had not abandoned his claim to fear persecution for his membership of Fatah and explained why he had not mentioned his involvement with the Muslim Brotherhood in his application for asylum in France or the documents he prepared for lodgment in the United States. He indicated that even when he came to Australia he was told to concentrate his claim for asylum on one particular matter and therefore did not mention it to the Department of Immigration. He later learned to trust the Department of Immigration and that was why he was bringing the matter up now.
Before me today the applicant said that the letter which was written by his lawyer, although it claims to have been a translation of an Arabic text was mistaken and that he had in fact mentioned his membership of the Muslim Brotherhood to the French. Unfortunately I am unable to find that in any of the papers which I have, although it seems to me that some of the papers that were before the Tribunal may not have included in the book. The Tribunal looked at the applicant's three claims individually. In regard to the Fatah claim it took the view that going on a young person's camp for approximately six weeks, which the applicant had described as a scout camp, was not likely to cause problems with Syrian authorities, particularly as that had happened in 1983. The Tribunal states at CB [131]:
“The independent evidence suggests that an ordinary supporter of the PLO would not face difficulties in Syria. They are not politically active on behalf of the PLO ... The Tribunal finds that the applicant's involvement with the PLO (Fatah faction) is tenuous to say the least ... The Tribunal notes that according to his evidence at hearing "everyone" in Syria knows that he is no longer involved in Fatah ...”
The Tribunal also came to the conclusion that the applicant would not be persecuted for a convention reason for refusing to undertake military service. The Tribunal pointed out that the Syrian regime had recently published a decree offering expatriates the chance to pay monetary compensation in lieu of military service which was $15,000 for a person who had been away for 15 years or was aged over 40. At CB [132] the Tribunal said:
“The Tribunal finds that any prosecution the applicant would face for failing to undergo his military service would not give amount (sic) to Convention based persecution. It is generally accepted [internationally] that states have the right to prosecute their citizens for refusal or failure to undergo compulsory military service. There is no evidence to suggest that the applicant would face disproportionately harsh treatment for his failure to undergo military service for a Convention reason.”
The authorities (at least up to 2002) concerning military service have been collected by Gray J in Erduran v Minister for Immigration [2002] FCA 814 and this decision would appear to echo the view taken by the Tribunal. However, his Honour did go on at [28 et seq] to consider the question of whether a refusal to undergo compulsory military service arising out of conscientious objection might found a claim for convention based persecution with particular reference to the Minister for Immigration v Yusuf [2001] HCA 30.
The distinguishing factor between the instant case and these others was that in those cases some suggestion had been made by the applicant that he did not believe in war and was opposed to military service on some moral or political basis. The question then was the extent to which the Tribunal was obliged to investigate that claim. No such claim is made here and the Tribunal would be entitled to infer from the fact that the applicant had sought to join the French Foreign Legion that he had no particular political or moral objection to the profession of arms.
Finally, the Tribunal considered the question of the applicant's fear arising from his connection with the Muslim Brotherhood. At [CB130] the Tribunal says this:
“The applicant made an application for asylum in France and made no mention of the Muslim Brotherhood. He made a further application for residence in the USA and again made no mention of the Muslim Brotherhood. He made an application to the Australian Department of Immigration and made no mention of the Muslim Brotherhood. The Tribunal does not accept as reasonable the applicant's justification for his failure to mention this claim until his Tribunal hearing. The applicant [Tribunal] notes that the applicant claims that he could "trust the Department of Immigration" with his "secrets" and yet he made no mention of this claim to the Department of Immigration nor did he even attempt to put it in writing to the Tribunal.”
The Tribunal takes comfort in the decision of Tamberlin J in Gholami v Minister for Immigration [2001] FCA 109 and then states at [131]:
“The Tribunal has given careful consideration to his various rationalisations but it cannot be satisfied that the applicant has explained the crucial omission of this claim in any meaningful way. The Tribunal therefore cannot, and does not, believe that the applicant was ever involved with the Muslim Brotherhood. The Tribunal gives no weight to any of his claims regarding the Muslim Brotherhood.”
The Tribunal has come to three conclusions. The conclusion in relation to Fatah is a conclusion about the well-foundedness of the applicant's fear. It is a matter which the Tribunal has been mandated to decide upon. It is not open for this court to effectively re-litigate that claim. This would be impermissible merits review. The Tribunal has come to a decision concerning military service based upon authorities that have not been overruled. I cannot see how its decision in that regard is one made in jurisdictional error. Finally, the Tribunal has made a decision concerning a claim which it has not believed. It has been said time and time again that this is a matter for the Tribunal “par excellence” and provided there is some reasonable basis for coming to that conclusion, which there is in this case and which the Tribunal has articulated, it is not for this court to intervene.
In those circumstances I am unable to find any grounds upon which this decision can be reviewed. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
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