SZDFF v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1178

FEDERAL COURT OF AUSTRALIA

SZDFF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1178

SZDFF, SZDFG, SZDFH AND SZDFI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 701 OF 2006

EDMONDS J
1 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 701 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDFF, SZDFG, SZDFH AND SZDFI
Appellants

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	1 SEPTEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 701 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDFF, SZDFG, SZDFH AND SZDFI
Appellants

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	1 SEPTEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from the Federal Magistrates Court of Australia (Smith FM) dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant protection visas to the appellants.

   THE DECISION UNDER REVIEW

2. The appellants are a mother and her three sons, all citizens of Lebanon, who arrived in Australia on 13 October 2000.  Only the appellant mother (SDZFF) advanced claims to be a refugee in her own right, the sons relying on membership of their mother’s family, and I will refer to her as ‘the appellant’. 

3. The recitation of the relevant background facts contained in the written submissions of the Minister do not seem to be in dispute and I accept them as an accurate summary of the decision under review and the proceedings below.

4. In summary, the appellant claimed to fear persecution in Lebanon on three bases:

   (1)She feared harm by Hezbollah and other Islamic groups as a result of being suspected of having collaborated with the South Lebanese Army (‘SLA’) led by General Antoine Lahad and the former Israeli occupation;

   (2)She feared harm from a Mr Mrad, a wealthy politician in Lebanon, whom she claimed had been responsible for the murder of her eldest son in 1990; and

   (3)She feared harm from relatives of her son-in-law, who blamed her for the break-up of his marriage to her daughter (an Australian citizen).

5. As to the first claim, the Tribunal accepted that the appellant had worked as a housekeeper for a Mr Al-Khoury, an SLA member.  It also accepted that in June 2000 she had been detained and questioned for two days by Hezbollah.  However, it did not accept that this gave rise to a well-founded fear of persecution for two discrete reasons:

   (1)The appellant was never a member of the SLA, had no political profile, had no association with Israel or its administration in South Lebanon and did not claim to have been suspected of passing information to the SLA.  She only worked as a housekeeper and did not perform any other duties.  Having regard to the appellant’s profile, the Tribunal was not satisfied that she would be perceived as a collaborator with the SLA.  

   (2)In any event, according to the independent information, former SLA members and people accused of collaboration were no longer targets for retribution by Hezbollah, or other violent groups.

6. As to the second claim, the Tribunal accepted that the appellant’s son had been murdered in 1990 while working for an MP in Tripoli.  However, again, it did not accept that a well-founded fear of persecution for a Convention reason arose, for a number of reasons:

   (1)The appellant had ‘provided no acceptable reason as to why she believed her son was killed by members of Abdel Rahim Mrad’s party’ (AB 135).  In other words, the Tribunal was not persuaded that the son’s killing had anything to do with Mr Mrad.

   (2)If there were a link, the Tribunal did not think that that gave rise to a real risk of future persecution of the appellant or her sons at the hands of Mr Mrad.  There was no suggestion that he had harassed them; only a theory (which the Tribunal regarded as ‘farfetched speculation’) that Mr Mrad would harm her and her sons to prevent her sons from avenging their brother’s death.

   (3)If that theory were sound, the motivation for the feared harm would not be an imputed political opinion, but merely Mr Mrad’s desire to avoid revenge (i.e., the feared harm would not be for a Convention reason).

7. As to the third claim, the harm that the appellant feared was motivated by ‘personal reasons’ (i.e., revenge for her perceived role in a marriage break-up), not by any Convention reason.

   THE PROCEEDINGS BELOW

8. In the Federal Magistrates Court, the appellant pressed arguments in respect of the Tribunal’s responses to her first and second claims.

9. As to the first claim (which his Honour referred to as ‘the Hezbollah claim’), the appellant argued that the Tribunal’s reasoning contained two errors: (i) misunderstanding her claims, in asserting that she ‘did not claim to have been suspected of passing sensitive information to the SLA’; and (ii) making a finding that was not open to it, in not being satisfied that she would be perceived as a collaborator: See [27] and [31] of the Federal Magistrates reasons: SZDFF & Ors v Minister for Immigration & Anor [2006] FMCA 433.

10. As to the first point, his Honour analysed the claims the appellant had advanced, and was not persuaded that the Tribunal’s understanding of them was not open to it.  While the appellant had claimed to be regarded as a collaborator and a traitor and accused of ‘carrying information’ to her employer, the effect of the Tribunal’s summary (which was open to it) was that she was not accused of being a spy (see [28]).

11. In any event, his Honour went on, if the Tribunal was in error in this respect, there were two further reasons why that error did not go to jurisdiction.  One was that any error was an error of fact which did not result in a failure to address a claim (see [29]).  The other was that the Tribunal had provided at least one ‘alternative and independent reason’ for its conclusion on the Hezbollah claim – i.e., that former SLA members and those accused of collaboration were no longer at risk of retribution.

12. The second error upon which the appellant relied, in his Honour’s view, merely constituted a challenge to an assessment of fact which was reasonably open to the Tribunal on the material before it (see [32]).

13. His Honour then turned to consider the appellant’s second claim, which his Honour referred to by as ‘the Mrad claim’.  Three criticisms were pressed in argument.

14. The appellant’s first contention in relation to the Mrad claim was that the Tribunal’s conclusion that she had given ‘no acceptable reason as to why she believe[d] her son was killed by members of Abdel Rahim Mrad’s party’ was wrong.  The appellant said that she had, in fact, provided reasons.  His Honour regarded this submission as misconceived, in that the Tribunal was simply setting down its conclusion that no reasons were advanced which it found ‘acceptable’ (see [37] – [38]).

15. The appellant’s second contention was that the Tribunal had misapplied s 91R(l)(a) of the Migration Act 1958 (Cth) (‘the Act’) in making its assessment that the harm feared from Mr Mrad lacked a Convention nexus. His Honour did not perceive any such error, and regarded it as open to the Tribunal to find that the appellant’s fears concerned a non-Convention-related motivation (see [39] – [41]).

16. In any event, his Honour accepted the Minister’s submission that an error in the Tribunal’s finding as to Convention nexus would not go to its jurisdiction, unless the other reasons for rejecting this claim (i.e., the absence of persuasive evidence that the murder was linked to Mr Mrad, or that he had no ongoing interest in the appellant’s family) were also affected by some relevant error (see [42).

17. The third contention which the appellant advanced in the Court below was that it was not open to the Tribunal to assess the appellant’s chances of encountering harm from Mr Mrad as ‘remote’.  In his Honour’s view, this argument ‘did not go beyond criticisms of factual assessments which were essentially part of the duty of the Tribunal to make’ and did not reveal jurisdictional error (see [45]).

    THE APPEAL

18. The Notice of Appeal alleges that his Honour fell into error in his responses to:

    (a)the argument concerning the Tribunal’s conclusion that ‘no acceptable reason’ had been given (cf. [14] supra; Notice of Appeal - Ground A); and

    (b)the argument concerning the Tribunal’s finding that any harm feared at the hands of Mr Mrad would not be inflicted for a Convention reason (cf. [15] – [16] supra; Notice of Appeal – Ground B).

19. As to the issue raised in Ground A, it seems clear to me that in the relevant passage the Tribunal intended to convey its lack of satisfaction as to the cogency of the appellant’s explanations for her belief that Mr Mrad was linked to her son’s murder.  It went on to set out brief reasons for that lack of satisfaction which (as his Honour held at [38]) were rational.  I agree.

20. As to the issue raised in Ground B, the proposition advanced by the appellant was that Mr Mrad wanted to harm her and her sons to prevent her sons from exacting revenge for their brother’s murder.  On her evidence, therefore, the motivation for the harm which she feared was nothing to do with any political opinion held by or imputed to her (or any other Convention reason); rather, it was a pragmatic desire by Mr Mrad to avoid possible harm to himself.  It was clearly open to the Tribunal to find that she did not meet the test in s 91R(1).

21. The two aspects of the Tribunal’s reasoning on the Mrad claim which are attacked by grounds A and B are, as his Honour pointed out (at [42]), independent of each other.  The appellant would need to succeed on both grounds in order to demonstrate jurisdictional error by the Tribunal in dealing with the Mrad claim.

    Additional ground

22. As to the issue referred to in the appellant’s written submissions as ‘Ground 1’, the argument appears to be essentially the same as that advanced on the Hezbollah claim before his Honour below.

23. The immediate difficulty faced by that argument is that it does not reach what his Honour identified (correctly) as an independent basis for the conclusion that the appellant did not have a well-founded fear of harm at the hands of Hezbollah: Even if she was regarded as an SLA member or sympathiser, or collaborator, country information indicated that she would not be a target for retribution on that account.  Even if it were soundly based, therefore, the argument would not establish jurisdictional error in the Tribunal’s response to the Hezbollah claim.  

24. Further, identifying the particular part of the reasoning which the appellant’s argument does attack (i.e., the finding that she would not be regarded as a collaborator) serves to confirm that, if the Tribunal misunderstood anything, it was the evidence she advanced to support her claim (i.e., that she had been detained and accused of particular things in the past) and not the claim itself (i.e., that she would be harmed because Hezbollah regarded her as a collaborator).  If there was any error, therefore, it was (as his Honour held) simply one of fact, and not a failure by the Tribunal to perform its statutory task of review.

25. It was submitted on behalf of the appellants that s 414 (read with s 415) of the Act lays down a condition on the Tribunal that the ‘Tribunal must review the decision’. The appellant submitted that this is a mandatory obligation imposed on the Tribunal by the Act and therefore it has to be cautious and these provisions cannot either arbitrarily or callously be overlooked when considering an applicant’s claims. Counsel for the appellant referred me to what was said by a Full Court of this Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263. It was submitted that there was a constructive failure on the part of the Tribunal to review the decision under s 414 of the Act, in an articulate and constructive manner required in s 415 of that Act. Therefore the Tribunal had committed jurisdictional error.

26. I cannot agree. There is no constructive failure on the part of the Tribunal to review the decision under s 414 of the Act, in an articulate and constructive manner required in s 415 of the Act. All relevant claims were addressed and dealt with and for the reasons explained by his Honour, the Tribunal’s reasons do not disclose any misunderstanding of the appellant’s claims.

27. For the foregoing reasons, the appeal must be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:       1 September 2006

Solicitor for the Appellants:	Mr Chandra Jayawardena
Counsel for the First Respondent:	Mr G Kennett
Solicitor for the First Respondent:	Blake Dawson Waldron

Date of Hearing:	22 August 2006
Date of Judgment:	1 September 2006