SZDHA v Minister for Immigration
[2005] FMCA 1306
•8 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDHA v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1306 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Lebanon as a member of El Tiar Al Aouni – applicant claims Tribunal did not consider claims in a probative or constructive manner. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1), 91R(2), 91S |
| SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857 |
| Applicant: | SZDHA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1074 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 24 August 2005 |
| Date of Last Submission: | 24 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C. Jayawardena, Solicitor |
| Counsel for the First Respondent: | Ms R. Henderson |
| Solicitors for the First Respondent: | Ms L. Gazi, Australian Government Solicitor |
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.
That the applications filed in this Court be dismissed.
That the Applicant pay the costs of the Respondent in an amount of $5000.
That the Applicant pay the costs in accordance with Order 4 within 28 days unless otherwise agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1074 of 2004
| SZDHA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant protection visas to the applicants.
The applicants in the application before this Court (“the Application”) are a husband and wife and their son. The applications of the wife and son are dependent on the husband’s successful application for a protection visa. For the purposes of this judgment I will refer to the applicant husband as the Applicant.
The Applicant was born in Halba Lebanon on 16 July 1973.
The Applicant was born as a Lebanese citizen and claims to remain as a Lebanese citizen.
The Applicant claims to belong to a Middle Eastern ethnic group and is an Orthodox Christian.
The Applicant claims that prior to arriving in Australia he was a musician. The Applicant claims that between 1994 until 2002 he worked as a one man band and organist at various places. The Applicant claims that in 2003/04 he became a member of the Society of Professional Musicians of Lebanon.
The Applicant’s wife was born in Nabay El Matn Lebanon on
22 December 1978.
The Applicant’s wife was born as a Lebanese citizen and claims to remain as a Lebanese citizen.
The Applicant’s wife claims she belongs to a Middle Eastern ethnic group and is an Orthodox Christian.
The Applicant’s wife claims that prior to arriving in Australia she was a housewife.
The Applicant’s son was born in Bankstown, Sydney Australia on
26 September 2003.
The Applicant claims that he legally departed from Beirut International Airport on 3 September 2003.
The Applicant arrived in Australia on 5 September 2003.
On 29 September 2003 the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).
The Applicant claimed that, if he returned to Lebanon, he feared he would be persecuted and imprisoned by the Government of Lebanon and the Syrian Army by reason of his membership of El Tiar Al Aouni (“General Aoun’s group”).
On 16 October 2003 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 Refugees Protocol.
On 6 November 2003 the Applicant filed an application for review by the Tribunal. On 25 February 2004 the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 13 April 2004 the Applicant filed his Application in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to directions made on 13 July 2004, the Applicant filed an Amended Application on 3 November 2004 in this Court.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s claims
The Applicant’s claims are essentially based on his fear of persecution by reason of his political opinion and support for General Aoun’s group in Lebanon whom he claimed were in conflict with the Lebanese and Syrian authorities. The Applicant claimed that he has been a supporter since 1991 and was involved in writing music and songs for the group, distributing pamphlets and talking to people about attending the group’s meetings.
The Applicant claimed that he was arrested and detained on 2 separate occasions in 1999 or 2000 and March 2003 following participation in demonstrations and that he was detained for 2 days and 1 week respectively. He claimed that during the periods he was detained he was mistreated, beaten and prohibited from contacting his family. On each occasion the Applicant was released without charge.
The proceeding in this Court
The Applicant was legally represented before this Court.
The Applicant’s submissions before this Court, both written and oral, were essentially encapsulated in a claim that the Tribunal did not consider, in a probative or constructive manner, the claims of the Applicant and thereby failed to exercise jurisdiction. The particulars relied upon were identified as follows:
a)Failure by the Tribunal to find that the Applicant is a Lebanese person who takes political action.
b)The Tribunal erred in holding that the Applicant must have a high profile within the General Aoun’s group before it could be found that he was persecuted for a Convention reason.
c)The Tribunal erred in finding that the independent evidence indicated that the expression of support for General Aoun does not attract the adverse attention of the authorities.
d)The Tribunal erred in finding that, if the Applicant returned to Lebanon, he would be able to express his views without experiencing unreasonable restrictions on his right of political expression.
e)The Tribunal erred in finding that the Applicant had been of no real interest to the Lebanese authorities in the past by reason of his support of General Aoun.
The Applicant relied on SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857 in support of his contention that the Tribunal did not consider properly the claims of the Applicant and made findings of fact that were not consistent with the evidence before it.
The Applicant submitted that the particulars set out above demonstrate the mistakes made by the Tribunal in making findings. He claimed that, for those reasons, the Tribunal did not analyse the Applicant’s claims in a probative or consistent manner.
The First Respondent submitted that the Tribunal did consider the Applicant’s claims in accordance with its duty and made findings of fact that were available on the material before the Tribunal.
Each of the particulars relied upon is considered below.
a) Failure by the Tribunal to find that the Applicant is a Lebanese person who takes political action
The Tribunal said that:
“The independent evidence referred to above suggests that only Lebanese who take political action that ‘might have repercussions on the ground’, for example, action that might lead to a security threat, face a real chance of serious harassment.”
The Applicant contended that he was such a person as identified by the Tribunal in that statement, namely a Lebanese man who took political action and therefore faced a real chance of serious harassment.
The Tribunal accepted that the Applicant had been a supporter of General Aoun in Lebanon since 1991 and that he was arrested and detained on 2 separate occasions in 1999 or 2000 and in March 2003. The Tribunal further accepted that he was detained for 2 days and 1 week respectively and was mistreated whilst detained.
However, the Tribunal noted that on both occasions when the Applicant was arrested, he was participating in large scale demonstrations and was released without charge or further consequences. The Tribunal further observed that the Applicant remained at the same address and worked at the same place of employment without suffering further harm or mistreatment, following the March 2003 incident, up until the time he left Lebanon for Australia.
The Tribunal noted that the Applicant was not a member of any political party. Rather, the Applicant was a “mere supporter” of General Aoun and his activities were low level and confined to composing songs for General Aoun’s group, distributing pamphlets and talking to friends about attending meetings. The Tribunal noted that the Applicant has not been politically active in Australia.
The Tribunal concluded that, in the circumstances, the Applicant had come to the attention of the authorities in the context of participating in demonstrations and was not of genuine or ongoing interest to the authorities. The Tribunal also concluded that the Applicant did not have a significant political profile and did not accept that his activities or support for General Aoun gave him a profile that was of any interest to the Lebanese authorities.
Following the quote referred to above, the Tribunal went on to state that “simply expressing support for Aoun’s policies on his return to Lebanon is not a cause of harassment.”
The Tribunal plainly considered whether or not the Applicant was a Lebanese man who took political action, but concluded, on the material before it, that he was a person who simply expressed support for General Aoun’s policies and that distinguished him from a person who may take political action.
The Tribunal’s conclusion that the Applicant was not a person of genuine, or ongoing, interest to the authorities and therefore did not face a real chance of persecution if he returned to Lebanon in the reasonably foreseeable future was a finding open to the Tribunal on the material before it.
The Tribunal stated that it had “carefully considered whether the applicant faces a real chance of persecution if he returned to Lebanon either now or in the reasonably foreseeable future”. The Tribunal made that statement following the identification by it of the claims made by the Applicant, the independent country information and its findings in respect of the Applicant’s claims.
Accordingly, I am satisfied that the Tribunal properly considered the Applicant’s claims that he was a Lebanese person who took political action such that he may face a real chance of serious harassment amounting to persecution in accordance with s.91R(2) of the Act. The Tribunal did not find that he was such a person. That finding was open to the Tribunal on the material before it. That finding is a finding of fact and accordingly this Court has no jurisdiction to interfere.
The ground based on this particular is rejected.
b) The Tribunal erred in holding the Applicant must have a “high profile” within the General Aoun’s group before it could be found that he would be persecuted for a Convention reason
In support of this contention, the Applicant relied on the following paragraphs contained in the Tribunal decision:
“The Tribunal noted that he was issued with passports without any difficulties and put to the applicant that if he the authorities were interested in him he would not have been issued with a passport. He said that Lebanon is a democratic country and even though they may arrest those opposed to the government they cannot stop people from getting passports.
The Tribunal put to the applicant that according to the independent evidence he would not have been able to depart the country if he was wanted by the authorities. He said that traitors and criminals would be prevented from leaving the country. He does not fear the government directly. Rather groups such as the intelligence agencies that tend to make a mountain out of a mole. Otherwise he is a normal citizen and his record is clean and at the end he is a musician.”
The Applicant contended that these observations by the Tribunal indicate that it was applying a test to the Applicant that he be required to have a “high profile” in General Aoun’s group before he was capable of satisfying the Tribunal that he had a well founded fear of persecution for a Convention reason. It is clear to me that, from the 2 paragraphs referred to above, the Tribunal was simply putting to the Applicant the fact that he was issued with a passport, and was able to depart the country without difficulty, would indicate to the Tribunal, according to the independent evidence, that the Applicant was not a person of particular interest to the authorities. I do not accept that this particular supports a contention that the Tribunal required the Applicant to demonstrate a “high profile” before he could be found to be persecuted for a Convention related reason.
The findings of the Tribunal, that passports were not generally issued without difficulty if the authorities were interested in a person and that such a person would not able to depart the country without difficulty, are findings of fact. They are findings that were open to the Tribunal on the material before it. Accordingly, this Court has no jurisdiction to interfere.
The ground based on this particular is rejected.
c) The Tribunal erred in finding that the independent evidence indicated that the expression of support for General Aoun does not attract the adverse attention of the authorities
The Applicant contended that the Tribunal’s finding that expression of support for General Aoun does not attract the adverse attention of the authorities, based on the independent evidence before it, is wrong and demonstrates that the Tribunal did not consider the independent evidence.
On the contrary, the Tribunal was careful to identify all the material provided by the Applicant in support of his application for review, and to identify with particularity the independent evidence to which the Tribunal had regard.
The Tribunal distinguished between expressions of support for General Aoun and those who were known to the authorities to be supporters of General Aoun. The Tribunal stated that it had considered the material provided by the Applicant and had found that this material generally confirmed the independent evidence before it and, otherwise, added no value to the Applicant’s evidence.
The Tribunal, particularly, had regard to the information before it that stated that “it is almost certain that anyone wanted by the Syrian or Lebanese authorities would be detained” and not be able to leave Lebanon without difficulty. The Tribunal had regard to the Applicant’s ability to obtain a passport in 1998, to renew the passport in March 2003 and to depart Lebanon on 2 occasions in 2001 and 2003. Those facts led the Tribunal to conclude that the Applicant was not a person of interest to the authorities. The Tribunal was satisfied that that finding was consistent with the independent evidence before it that indicated that expressions of support for General Aoun did not attract the adverse attention of the authorities. The Tribunal found that the Applicant was a person who expressed support for General Aoun.
Those findings of fact were open to the Tribunal on the material before it. The Tribunal properly considered the claims of the Applicant in making those findings. Accordingly, this Court has no jurisdiction to interfere.
The ground based on this particular is rejected.
d) The Tribunal erred in finding that if the Applicant returned to Lebanon he would be able to express his views without experiencing unreasonable restrictions on his right of political expression
The Tribunal was satisfied that, in the event the Applicant returned to Lebanon, he would be able to express his views without “experiencing unreasonable restrictions on his right of political expression”.
The Tribunal stated that it was clear from the independent evidence that “there is not a complete denial of civil and political rights in Lebanon” and that a level of public expression of political views is tolerated. The Tribunal noted that simply expressing support for opposition parties, without something more, was not a cause of harassment.
The Tribunal concluded that it was satisfied that, if the Applicant was to return to Lebanon, and to engage in political activity and or criticism at the same level as he did in the past, there was no real chance he would face persecution as a result.
The Tribunal considered the material before it and made its findings. Those findings were open to the Tribunal on the material before it. Those findings are matters of fact and this Court has no jurisdiction to interfere.
Accordingly, the ground based on this particular is rejected.
e) The Tribunal erred in finding that the Applicant had been of no real interest to the Lebanese authorities in the past by reason of his support of General Aoun
The Applicant referred, in support of his contention in respect of this particular, to the Tribunal’s finding, following its consideration of all the material before it, that the Applicant has been of no real interest to the Lebanese authorities in the past as a result of his support for General Aoun or as a result of his political activities prior to his departure from Lebanon.
That finding follows the detailed identification by the Tribunal of all the material to which it had regard, its analysis and consideration of the claims of the Applicant and its findings in respect of those claims.
The Tribunal correctly asked itself the question, was the Applicant a person with a well founded fear of persecution for a Convention reason by the Lebanese authorities if he was to return to Lebanon. The Tribunal found, having considered all of the material before it, that the Applicant has not been a person of real interest to the Lebanese authorities in the past for the reason of his support for General Aoun or his political activities prior to him leaving Lebanon. The Tribunal had regard to that finding in considering whether there was a real chance of persecution in the reasonably foreseeable future. It concluded there was not.
That finding is a finding of fact that was open to the Tribunal on the material before it. The Tribunal properly considered the claims of the Applicant prior to making that finding and properly applied the law to this finding in reaching its conclusion. In the circumstances, this Court has no jurisdiction to interfere.
Accordingly, the ground based on this particular is rejected.
Conclusion
In the circumstances, I am satisfied that the Tribunal carried out the task required of it in a probative and constructive manner, properly identifying the claims of the Applicant, properly considering each of the claims, making relevant findings and applying the law to those findings.
Accordingly, the Applications before this Court are dismissed with costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 7 September 2005
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