SZDGJ v Minister for Immigration
[2006] FMCA 872
•23 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDGJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 872 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – use of country information – notice of objection to competency filed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A;424A(3)(a);474;477(1); 483 Federal Magistrates Court Rules2001, sch.1 |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 |
| Applicant: | SZDGJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1050 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 23 May 2006 |
| Date of last submission: | 23 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2006 |
REPRESENTATION
| Applicant appearing in person |
| Counsel for the Respondent: | Ms P. Sibtain |
| Solicitors for the Respondent: | Ms A. Mansour, Clayton Utz |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application is incompetent and is dismissed.
That the Applicant pay the First Respondent's costs in an amount of $4400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1050 of 2004
| SZDGJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 March 2003. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicant.
The applicant arrived in Australia on 25 January 2000, having legally departed from Beirut on a passport issued in his own name.
On 15 February 2002, the applicant lodged an application for a protection visa with the Department of Immigration. The applicant claimed that he feared persecution by members of the Hezbollah Party, who were brothers of the Shiite girl that he was seeing.
On 5 March 2002, the delegate refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugee Protocol (“the Convention”).
The tribunal proceeding
On 2 April 2002, the applicant lodged an application for review of that decision on the following ground:
“Please Review the decision of the Department because they disregard a lot of points mentioned in my 866 application. It is very important that my fear in going back to Lebanon is from Hezbollah which is very powerful party in Lebanon and can't be controlled by Lebanese government.”
The applicant gave oral evidence to the Tribunal at a hearing in which he stated that he feared returning to Lebanon because he feared that the brother of his Shiite girlfriend would harm him if he returned. He told the Tribunal that he and his family were Christian. He told the Tribunal that the Shiite Muslim family of his girlfriend objected to his relationship with their daughter. The Tribunal noted that it put to the applicant that Hezbollah did not target private citizens in Lebanon but were focussed on the dispute with the Israelis in southern Lebanon. It noted that the applicant said he feared other members of Hezbollah would attack him out of loyalty to their colleagues.
The Tribunal noted that the applicant told it that he did not go to police to complain because there is no law and order in Lebanon. The Tribunal noted that it put to the applicant that Beirut, where the applicant lived, was now an extremely safe city and that state protection of citizens has significantly improved since the end of the civil war in 1991. It noted that the applicant responded that media reports of the situation in Lebanon were not always accurate.
A relative of the applicant gave evidence on behalf of the applicant and his evidence appeared to be directed to confirming the applicant's relationship with the Shiite Muslim girl. The Tribunal then identified independent country information to which it had regard. The Tribunal found that the independent country information indicated that generally members of Hezbollah do not target private citizens for domestic reasons and do not cause harm to ordinary citizens of Lebanon, irrespective of their religious affiliations and political beliefs.
The Tribunal noted that the applicant had not claimed any previous mistreatment at the hands of the girlfriend's brothers or other members of Hezbollah although the applicant claims that the girlfriend's family members had approached his family after the applicant had returned to Australia and threatened to kill them if he returned to Lebanon. The Tribunal noted that the applicant did not give any evidence that he had received any threats from any other members of Hezbollah for any reason and that the threat made to his family was because of the objection of his girlfriend's family to their relationship.
The Tribunal expressed doubt about the applicant's claims of a relationship with the Shiite Muslim girl however, proceeded to consider the applicant's application on the basis that it accepted the evidence that the applicant had formed a clandestine relationship with a girl from a Shiite Muslim family. It also accepted that the family of the girlfriend had threatened him with harm if he returned to Lebanon. However the Tribunal found that it was not satisfied that such harm said to be feared by the applicant arose for a Convention reason.
The Tribunal found that the fear of harm arose from the girlfriend's family's strong objection to the personal relationship between the applicant and the girlfriend. The Tribunal noted that the applicant did not claim that he would be targeted for reasons of his political opinion or his religious affiliation. The Tribunal also found that it was not satisfied that other members of Hezbollah would cause harm to the applicant out of loyalty to the girlfriend's brothers. The Tribunal found that claim to be purely speculative where there had been no evidence of any harm or threat by other members.
The Tribunal also found that the independent country information indicated that the security situation in Lebanon had vastly improved and that Lebanese authorities were willing and able to protect against serious threats of violence and harm, particularly in Beirut where police presence is highly visible and the city is regarded as extremely safe.
Having considered all the evidence the Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for any Convention-related reason if he were to return to Lebanon now or in the foreseeable future. However, it also found that, if the applicant were targeted for harm by the girlfriend's family, state protection was available.
The hearing before this court
By further amended application filed on 30 November 2004, the applicant seeks constitutional writ relief in respect of a decision of the Refugee Review Tribunal made on 26 March 2003 in which the decision of the delegate to refuse a protection visa was affirmed. The further amended application relies on the following 2 grounds:
“The Tribunal denied applicant natural justice by failing to put to applicant adverse independent evidence:
1. - UK Home Office Country Assessment Lebanon April 2002
- CX22540
2. The Tribunal failed to consider whether reasonable protection is available to applicant, given the fact there is evidence before the Tribunal that the Lebanese authorities do not exercise total control over all Lebanese territory.”
Ground 1
The first ground of review upon which the applicant relies appears to be a complaint that the Tribunal failed to put adverse independent evidence to the applicant. The applicant identifies UK Home Office Country Assessment Lebanon April 2002 CX22540 as such information. Under s.424A(3)(a) of the Migration Act 1958 (Cth) (“the Act”) the Tribunal is not required to give such information to the applicant prior to the hearing as required by s.424A of the Act and interpreted by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.
Certainly the Tribunal did put to the applicant that Hezbollah did not target private citizens in Lebanon but were focused on the dispute with the Israelis and southern Lebanon. The Tribunal noted the applicant's response. It also put to the applicant that Beirut was now an extremely safe city and it noted the applicant's response.
Accordingly, Tribunal did put the relevant independent information to which it had regard, and in respect of which it made findings, to the applicant. In any event, there was no obligation under the Migration Act obliging the Tribunal to do so (s.424A(3)(a) of the Act).
In those circumstances, ground 1 of the applicant's application for review is not made out.
Ground 2
In respect of ground 2, the applicant claimed that the Tribunal failed to consider whether reasonable protection was available to him, given the fact there was evidence before the Tribunal that the Lebanese authorities do not exercise total control over all Lebanese territory.
The Tribunal found that it was not satisfied that the harm said to be feared by the applicant arose for a Convention reason. That is a finding of fact. The Tribunal provided reasons for that conclusion and such a finding was open on the material and evidence before the Tribunal.
The Tribunal further considered whether or not protection was available to the applicant were he to return to Lebanon. Having regard to independent country information before it, the Tribunal found that the security situation in Lebanon had vastly improved, that the police were highly visible in Beirut and that the Lebanese authorities were willing and able to provide protection against serious threats of violence and harm.
Again, those were findings of fact that were open to the Tribunal on the evidence and material before it.
Accordingly, the applicant's ground of review in paragraph 2 of the application is not made out.
In the circumstances the application is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
Notice of objection to competency
On 9 July 2004 the first respondent filed a notice of objection to competency on the basis that the applicant had failed to comply with s.477(1) of the Act in seeking review of the Tribunal's decision within 28 days of the notification of the decision.
The applicant gave evidence to the Court this morning that he attended the handing down of the Tribunal's decision on 16 April 2003. At that time he was given both a copy of the reasons for the decision of the Tribunal and a letter dated 16 April 2003 informing him that he had a limited right to seek review of the decision but that there were strict time limits that applied.
In those circumstances I find that the applicant had notification of the Tribunal decision at least by 16 April 2003 and the filing of his application in this Court on 8 April 2004 is outside the statutory prescribed time limit.
Accordingly, the application is incompetent and is otherwise dismissed.
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs fixed in the amount of $4400 including counsel fees. There were no submissions filed by the applicant and I am satisfied that it was both appropriate and reasonable in the circumstances that counsel be briefed to appear. The sum sought both includes counsel fees and is less than what sch.1 of the Federal Magistrates Court Rules2001 provides. In the circumstances I am satisfied that the sum sought is reasonable and I order that the applicant pay the first respondent's costs in an amount of $4400.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S.Kwong
Date: 16 June 2006
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