SZDZC v Minister for Immigration
[2005] FMCA 1841
•22 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDZC v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1841 |
| MIGRATION – Refugee – whether conduct is sufficiently serious to amount to persecution is a matter of fact and degree for the Tribunal – the delegate's decision is no longer effectively operative for the purposes of this review application – the Tribunal’s findings were open to it – application is dismissed. |
| Migration Act 1958, s.91R(1)(b) Federal Magistrates Court Rules 2001, r.21.02(2)(a) |
| Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41 Minister for Immigration & Multicultural & Indigenous Affairs v Haji Ibrahim [2000] 204 CLR 1 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZDZC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2026 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 22 November 2005 |
| Date of Last Submission: | 15 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. J. Bird |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $3800, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2026 of 2004
| SZDZC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
This is an application filed in this Court on 1 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 May 2004 and handed down on 22 June 2004 affirming the decision made on 21 January 2004 by a delegate of the respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant is a national of Israel, who arrived in Australia on
14 October 2002. He applied for a protection visa on 30 September 2003 and this was refused on 21 January 2004. The applicant sought review by the Tribunal on 6 February 2004. The applicant claimed that he had suffered persecution while in Israel based on the Convention grounds of political opinion and ethnicity. He claimed that as a consequence of his outspoken, “extremely” pro-Palestinian, views he was humiliated, insulted and arrested by the authorities. He further claimed that he was discriminated against as a member of the Bedouin minority and was unable to live a dignified life in Israel. He claimed his views put him at odds with Jewish Israelis, Arab Israelis and the Israeli authorities.The applicant's claims are set out in his application to the first respondent's Department reproduced at Court Book (“CB”) 1 to CB 25, in his application to the Tribunal reproduced at CB 46 to CB 49, and in particular in a statement to the Tribunal by the applicant at CB 50 to CB 55 where the applicant’s adviser in submissions repeated the applicant’s claims that had previously been put to the first respondent’s Department. The applicant also attended a hearing before the Tribunal on 4 May 2004 (CB 105). Following the hearing on 7 May 2004 the applicant wrote to the Tribunal attaching further information in support of his application. The Tribunal's account of what occurred at the hearing is set out in its decision record at CB 105.5 to CB 113.5.
The Tribunal's “Findings and Reasons” are set out at CB 113.5 to CB 117.7. The applicant had two separate limbs to his claims. The first was that he feared persecution because of his pro-Palestinian views and activities in support of those views, and that he feared harm from the police and military in Israel, and cronies of the police and military. The second limb was that he would face persecution as a member of the Bedouin minority, which was seen by the Tribunal as a claim based on ethnicity, and that the harm that he feared was from Israelis but also from Israeli Arabs who considered Bedouins as lower class, inferior and uncivilised. Relevantly, the Tribunal made the following findings:
1)While it noted that there were some inconsistencies between the applicant’s written claims and oral evidence, the Tribunal did not draw any adverse inference from this (CB 113.7).
2)The applicant is a national of Israel, a Bedouin and a Muslim (CB 113.9).
3)It accepted that the applicant holds pro-Palestinian and pro-peace views (CB 114.1).
4)In 1996, in the course of his participation in a demonstration, he was briefly detained, interrogated and mistreated by the authorities, but was released a few hours later without being charged (CB 114.3).
5)There was nothing in his evidence to suggest that the authorities showed any genuine interest in him in the subsequent six years that he remained in Israel apart from the statement that he “felt” that he was being watched (CB 114.4).
6)The Tribunal accepted that the applicant expressed his political views in discussions following prayer sessions and that he was humiliated, insulted and pushed around by those who were acting on behalf of the authorities. But, it found that he did not claim to have suffered any other harm, let alone serious harm, during these incidents or in the four years prior to his departure from Israel. It was satisfied that the applicant’s experiences in this regard did not amount to persecution within the meaning of the Convention as qualified by s.91R(1)(b) of the Migration Act 1958 (“the Act”) (CB 114.6).
7)The Tribunal was not satisfied that the Israeli authorities were genuinely interested in the applicant and did not accept that the applicant had suffered serious harm amounting to persecution for reason of his political opinion in Israel (CB 114.7).
8)The Tribunal found the applicant's explanation for not leaving Israel in October 2001, despite having obtained a valid Australian visa, that he was learning how to drive, as being completely unsatisfactory (CB 114.8).
9)Nor did the Tribunal find the applicant's explanation as to why he did not apply for protection for over 12 months after having arrived in Australia as being satisfactory (CB 115.1).
10)In relation to the applicant's political views the Tribunal was satisfied that if the applicant returned to Israel and continued to express his views as he had previously (and there was no suggestion by the applicant that it would be otherwise) then there would be no real chance that he would face persecution now or in the reasonably foreseeable future (CB 115.7).
11)The Tribunal was not satisfied that the implicit racism in Israeli police attitudes towards the applicant on the occasions that he was stopped when he was driving, amounted to serious harm within the meaning of the Refugees Convention as qualified by s.91R(1)(b) of the Act. It noted that the applicant did not claim that his experiences in this regard were due to his political opinion, but that he was stopped and searched due to his appearance and Bedouin ethnicity (CB 116.1). Further, the Tribunal found that it was of the view that the actions of the Israeli police in stopping the applicant were designed to achieve a legitimate object of the country, namely to protect Israeli citizens against security threat (CB 116.3).
12)The Tribunal accepted that the applicant's family house was stoned and that there were ongoing disputes and tensions between Bedouins and Arab-Israelis in the applicant's village, and appreciated that regular and petty acts of discrimination are unpleasant and undesirable. However, it stated that while persecution involved discrimination, not all discrimination would amount to persecution. It was satisfied that the discrimination that the applicant faced, assessed cumulatively, did not reach the standard of persecution within the meaning of the Convention (CB 116.6).
13)The Tribunal accepted that the Bedouin sector was the weakest of all the population groups in Israel, and that they suffered some discrimination in education, and in relation to land issues, and that some had been victims of home destruction. However, the Tribunal found that independent evidence available to it did not support the view that Bedouins are persecuted, denied basic services or the right to earn a livelihood of any kind. Further, it noted that the applicant had obtained both primary and secondary education and apart from a period of 8 months had been able to work for different employers from 1998 to 2002, and that his mother owned agricultural land, and that at least two of his three brothers had been employed on a regular basis (CB 116.9).
14)Based on the evidence before it the Tribunal was satisfied that there was no real chance that the applicant would face persecution by the Israeli authorities, or the Jewish or Arab population of Israel for reason of his ethnicity, if he were to return to Israel now, or in the reasonably foreseeable future (CB 117.2).
15)The Tribunal noted that although the applicant mentioned religion (Islam) as a basis for his fear of protection in his visa application, he did not elaborate or make any claims of this kind in his review application or at the hearing (CB 117.3). This aspect was not pressed before the Tribunal.
16)Further the Tribunal noted that it had carefully considered the articles and news items provided by the applicant and found that these generally confirmed other independent evidence before the Tribunal which was discussed in detail (CB 117.4).
Based on all the above the Tribunal was satisfied that the applicant's claim to fear persecution was not well founded and that he was not entitled to protection in Australia (CB 117.5).
The applicant’s application to this Court contains the following claims:
“1.The presiding member
a. Did not deal on the basis of the facts provided by the applicant.
b.Given no credence to the fact that the applicant as a minority Bedouin has little or no protection from any official body in Israel.
c.Was attacked by both the Military and police in Israel whole being followed on several occasions.
d.Did not note that the persecution is feared because of the applicants membership or perceived membership of the particular social group: Ram v Minister for Immigration & Ethnic Affairs & Anor (1995) 57 FCR 565 at 569:
e.Did not take into account that
i. Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, the applicant is outside the country of his nationality and is unable and, owing to such fear, is unwilling to avail himself of the protection of his country i.e. Israel,
ii. And who, as a result of such events, is unable or, owing to such fear, is unwilling to return to Israel.
2.In addition the applicant claims that:
1.DIMIA erred in its decision ignoring specific claims made by (applicant name) and subsequent information clarifying the previous details per his application.
2.The applicant was expected to know up to date developments re developments in his native land and has not been there for two years.”
No amended application has been filed.
The applicant appeared before me today unrepresented, and was assisted by an interpreter in the Arabic language. Mr. Bird appeared for the respondents. At the hearing the applicant stated that he had provided the “correct information” to the Tribunal, he had explained his situation and that he would be killed because of his political opinion. The only specific claim that he put was that the Tribunal had ignored his claim that he had been harmed at some time and had been “bitten” (this claim was not clear). In any event, there was no evidence before me to contradict the Tribunal’s account of what occurred at the hearing, nor was there anything of this nature in the written material before the Tribunal. In all, the applicant was unable to assist further or to support the grounds in his application to the Court. It was clear that his complaints in this regard amounted to a request for impermissible merits review.
The applicant's first complaint in his application is that the Tribunal did “not deal” on the basis of the facts provided by the applicant. No particulars whatsoever are provided by the applicant to support this claim. Before me the applicant was unable to point specifically to “facts” the Tribunal did not deal with. On the material before me and as set out above, I cannot see that any of the claims put forward by the applicant were not dealt with by the Tribunal. From what the applicant said the hearing before me, it appears that what is meant by this complaint is that the Tribunal did not accept what the applicant had said. The Tribunal clearly dealt with the applicant’s claims, and its unchallenged account of the hearing with the applicant reveals that it gave the applicant the opportunity to expand and explain these claims. While it accepted some of what the applicant had put to it, and noted that information in the form of news items and reports that he put forward was generally consistent with other independent information before it, the Tribunal could not be satisfied that there was a real chance of persecution if he were to return, in the sense that that term is understood pursuant to the Refugee Convention and s.91R(1)(b) of the Act. The Tribunal’s findings were open to it and it gave reasons for its findings: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (“Durairajasingham”).
The applicant's second complaint is that Tribunal gave no “credence” to the fact that the applicant as a “minority Bedouin” had little or no protection from any official body in Israel. It is clear that the Tribunal did deal with each of the applicant's claims, and that it did deal specifically with his claim to be a Bedouin, and the difficulties that this may give rise to. The Tribunal accepted that the applicant was a Bedouin (CB 113.9) and relevantly found in relation to his political opinion that it was not satisfied that the Israeli authorities were genuinely interested in the applicant and did not accept the applicant had suffered serious harm amounting to persecution for reason of his political opinion in Israel (CB 114.7). Further, the Tribunal found that the applicant, as a Bedouin who held pro-Palestinian, pro-peace views, would nonetheless be able to return to Israel and continue to express his views as he had done previously, and that there was no real chance that he would face persecution now or in the reasonably foreseeable future on this basis. This again was open to the Tribunal on what was before it. The Tribunal looked at the situation relating to Bedouins in Israel and considered the applicant’s claims in light of independent information available to it. This was open to it. Further, it found that the applicant’s information was generally consistent with the independent information.
Also with reference to the applicant's third complaint that he was attacked by both the military and police in Israel, the Tribunal saw the applicant's claims in this regard that this was done on the basis of his ethnicity as being part of the minority Bedouin in Israel. It looked at the individual incidents that the applicant claimed to have occurred to him as a result of his being of Bedouin ethnicity and found that it was not satisfied that these occasions amounted to serious harm within the meaning of the Convention is qualified by s.91R(1)(b) of the Act. The Tribunal in its decision record at CB 103 and CB 104 set out its understanding in unexceptionable terms of the definition of “refugee” as contained in Article 1A(2) of the Convention, and at CB 104.2 in particular noted that s.91R(1)(b) of the Act required that the persecution must involve “serious harm” to the applicant. The Tribunal clearly dealt with the specific incidents of harm claimed by the applicant. While it accepted that these had occurred to the applicant it could not be satisfied that these occasions amounted to serious harm as required by the relevant legislation. Further, the Tribunal also looked at the situation, which does not appear to be a matter specifically complained about now by the applicant, but nonetheless it did look at the situation as to whether in the context of persecution the claims of the applicant involved discrimination that could result in harm to an individual, and whether such discrimination amounted to persecution in the circumstances before it. The Tribunal found that the discrimination claimed by the applicant due to his being a Bedouin or Arab Israeli, even assessed cumulatively, did not reach the standard of persecution within the meaning of that term pursuant to the Refugees Convention. Further, the Tribunal looked at the situation generally for persons who were part of the “Bedouin sector” and noted that while it was the “weakest” of all population groups in Israel, and had suffered some discrimination in education, and in relation to land issues, that the independent evidence to which the Tribunal had regard did not support the view that Bedouins were persecuted or denied basic services, or the right to livelihood of any kind in Israel (CB 116.8). Indeed it noted that the applicant had obtained primary and secondary education, and had been almost continuously in employment for the years 1998 to 2002. This complaint also is not made out.
The applicant's fourth complaint is that the Tribunal did not note that the persecution feared was because of the applicant’s perceived membership of the particular social group, and did not take into account that Convention definition of persecution in this regard. Clearly, as I have stated above, the Tribunal did look at the applicant's claims as they related to his membership of a particular social group. The applicant does not say in his application to the Court what this social group is, but clearly in the circumstances put forward by the applicant to the Tribunal, this was that he was a member of the Bedouin minority in Israel, and that he was a member of this minority because of his ethnicity, or that he was a member of the Arab population in Israel or both. Clearly, the Tribunal's decision record shows that the Tribunal understood this claim made by the applicant and that the Tribunal dealt with this claim. In summary, the Tribunal found that the harm claimed by the applicant because of his political opinion, or because of any discrimination he suffered even on a cumulative basis because of his ethnicity, did not amount to serious harm as required by s.91R of the Act. As the respondent submits, whether conduct is sufficiently serious to amount to persecution is a matter of fact and degree for the Tribunal. I note the respondent’s authorities put forward in this regard to support this proposition, and in particular Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41 at [50]-[53] where the Court said:
“We set out the finding earlier in this judgment. The appellant submits that the question whether a forced heterosexual relationship would constitute serious harm was a question of fact for the RRT, and not a matter for the Federal Magistrate to determine.
Where the question is whether the material which was before the Tribunal reasonably admits of different conclusions as to whether it falls within the ordinary meaning of a statute, the question is one of fact; see Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24] – [27].
Here, the question of whether the consequences of a homosexual being forced to participate in a homosexual marriage constituted "serious harm" for the purposes of the Convention, was plainly a question of fact, or of mixed fact and law, within the test stated in the authorities.
Counsel for the respondent very fairly, and properly, all but conceded that this ground of appeal had been made out.”
Further, I note that in its analysis the Tribunal made specific reference to Minister for Immigration & Multicultural & Indigenous Affairs v Haji Ibrahim [2000] 204 CLR 1, and in particular to McHugh J., who provided guidance on the degree of harm that would be required to constitute persecution. At [55] his Honour said:
“The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.”
It is clear the Tribunal understood the relevant tests to be applied. The findings that it made in this regard were open to it on the evidence that was before it. Nor does the Tribunal's consideration and analysis of possible future harm reveal error on the part of the Tribunal. Having found that the harm that the applicant suffered previously did not constitute serious harm, the Tribunal looked at country information about the then current political climate in Israel and found that there was, on the material before it, no real chance that the applicant would face persecution by the Israeli authorities, or the Jewish and Arab population of Israel for the reason of his ethnicity now or in the reasonably foreseeable future. This was set out at CB 117.2. Further at CB 117.4 the Tribunal also noted that it had carefully considered the articles and news items provided by the applicant in support of his application for review and found that the news items and reports generally confirmed the independent evidence before the Tribunal. This complaint is not made out.
The applicant’s fifth complaint, closely related to the one above, is the alleged failure by the Tribunal to take into account the persecution definition set out in the Refugees Convention. The Tribunal, as I have already set out above, found that it was satisfied that if the applicant returned to Israel that there was no real chance that he would face persecution now, or in the reasonably foreseeable future, on the basis of his expression of his political opinion (CB 115.7). Further, the Tribunal noted that it was reinforced in its view that the applicant had not suffered serious harm amounting to persecution for reason of his political opinion in Israel by the fact that the applicant did not avail himself of the opportunity to leave Israel in October 2001, despite having obtained a valid Australian visa. The applicant, in fact, did not leave until late October 2002, and arrived in Australia during that month. The Tribunal did not accept the applicant's explanation that the delay was because he was learning how to drive, and he did not want to interrupt that process. Further it took into account the explanation in the applicant’s account as to why he delayed a year after arrival in Australia for applying for a protection visa. Again it found that this explanation was not satisfactory. As the respondent submits these adverse credibility findings were open to the Tribunal on the evidence before it. As McHugh J. said in Durairajasingham at [67], findings of fact, including findings on credibility, are matters for the Tribunal.
“… a finding on credibility which is the function of the primary decision maker par excellance. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”
In his application to this Court the applicant also complains that the first respondent’s Department erred in its decision to refuse his protection visa, because the Minister’s delegate ignored specific claims made by the applicant, and subsequent information provided by the applicant. He complains that he was expected to know “up-to-date” developments that had occurred in his native land even though he had not been there for two years. I took the view, subsequently confirmed at the hearing before me by the applicant, that the applicant was really seeking review of the Tribunal's decision. In any event, even if the applicant was seeking review of the delegate's decision, I agree with Mr. Bird that the delegate's decision is no longer effectively operative for the purposes of review. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [80] McHugh J. said:
“The issuing of writs under s.75(v) of the Constitution and s.39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s.39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.”
I take the view that in seeking review of the delegate’s decision by the Tribunal, the applicant’s conduct in this regard is inconsistent with now seeking review of the delegate’s decision by this Court. The applicant was aggrieved by the delegate’s decision. He sought review on the merits by the Tribunal. Even if the delegate’s decision contained some error, then the Tribunal could address any such error and given that the Tribunal stands in the shoes of the primary decision makes and makes a decision “afresh”, then this would address any deficiency that the applicant would have sought from a Court. His action in going to the Tribunal, instead of directly to the Court was open to him, but this action is clearly inconsistent with his action now in coming to this Court, in so far as it may concern seeking review of the delegate’s decision. In all the circumstances, I would not exercise any discretion in the applicant’s favour for the reasons above if this complaint were to be pressed by the applicant.
In any event, the delegate’s decision is set out at CB 35 to CB 45. The relevant parts of the delegate’s decision record are at CB 40.6 to CB 45. The applicant does not say what specific claims made by him were ignored by the delegate, nor what aspects of the subsequent information that he provided in the “clarification” was also ignored. The applicant's claims before the delegate are particularly set out at CB 18 to CB 21. In essence, they do not appear to be in any way different to the claims that were subsequently before the Tribunal. Clearly the applicant was putting forward as the basis of his persecution his political views, being extremely pro-Palestinian, and his being part of the Bedouin minority, and the harm that he feared from the authorities, and from “my own countrymen”, Arabs “who do not accept the Bedouins as fellow Arabs”. The delegate did address those claims and found at CB 44.5:
“In view of all of the above relevant information (this was independent country information dealing with Bedouin and Arab minorities in Israel) I accept that the applicant may have a subjective apprehension about returning to Israel because of the continuing unsettled situation in that country. However, I find no indication that the Israeli Arabs including Bedouins are systematically harassed or persecuted by the state of Israel or the Jewish population of that state, nor is there any indication that the applicant would be harmed because of his claimed pro-Arab and pro-Palestinian views.”
Further, I cannot see that there was any expectation by the delegate that the applicant should be aware of “up-to-date” developments in his native land. There is no indication as to how this was relevant to this claim.
On the material before me I can see no error in the Tribunal's decision. The Tribunal looked at the applicant's claims as put by the applicant, understood and applied the relevant definition of persecution and found in relation to the applicant's claims that it could not be satisfied that there was a well founded fear of persecution should the applicant return to Israel now or in the foreseeable future. The Tribunal also noted its credibility concerns with some of the applicant's claims. All these findings were open to the Tribunal on the material before it and it gave reasons. I can see no jurisdictional error in the Tribunal’s decision. This application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 13 December 2005
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