SZEHM v Minister for Immigration
[2005] FMCA 1322
•30 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEHM v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1322 |
| MIGRATION – visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of Syria. PRACTICE & PROCEDURE – Joinder of party – Refugee Review Tribunal should be joined as party to the proceedings – SAPP v MIMIMA [2005] HCA 24 followed. |
Federal Magistrates Act 1999 (Cth), s.44
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 424A, 474
SAAP v MIMIA & Anor [2005] HCA 24
Purcell & Rix (No.1) [2002] FMCAfam 65
SZAAM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 219
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
| Applicant: | SZEHM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2685 of 2004 |
| Delivered on: | 30 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 30 August 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Leave to join Refugee Review Tribunal as a Respondent.
That the Application is dismissed.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00. I allow eight (8) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2685 of 2004
| SZEHM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 9th July 2004 and handed down on 2nd August 2004. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicant or four other members of his family.
Background
The Applicant is a citizen of Syria. He arrived with his family in Australia on 18th July 1999. On 2nd February 2004 they lodged an application for protection visas. On 12th February, the delegate of the Minister refused the application for protection visas and on 24th February the Applicants applied for a review of that decision.
The hearing took place on 21 May 2004. The Applicant and his wife and his wife's brother attended and gave oral evidence to the Tribunal. The Tribunal, as I said, affirmed the decision of the Delegate not to grant protection visas.
The Applicant, on the basis of his application, sought protection visas, claiming that he had a well-founded fear of persecution if he were to return to Syria. He referred to the fact that two of his cousins had been imprisoned and were accused of belonging to the Islamic Brotherhood Party, and his brother had been imprisoned for a considerable period of time, again being accused of belonging to the Islamic Brotherhood Party. The Applicant gave evidence that his brother had been tortured and generally ill treated whilst he had been detained, that he had commenced his imprisonment weighing 80 kilograms and at the conclusion, weighed some 35 kilograms. He was skeletal in appearance.
The Applicant gave evidence that he too had been detained. This was in 1986. He was arrested and detained by military and intelligence officers. He was not released until he had been held captive for about 38 days, and for about 20 or 21 of those days, he had suffered beatings and torture, including being blindfolded and receiving electric shocks, which had led him to faint.
He made his way to Dubai, where his wife joined him. She joined him in October 1994. She returned to Syria in 1997 and stayed there for three months, although apparently without incident. The Tribunal asked the Applicant a number of questions about his evidence, including why it was that it had taken several years before he lodged an application for a protection visa.
He told the Tribunal that when he came to Australia, he did not know about refugee matters. He had a business sponsor who had deceived him and when the Tribunal put to him that the lengthy delay in lodging a protection application for a protection visa was something the Tribunal could take into account when considering how genuine his fear of persecution was, the applicant said that he really was terrified, he was scared to return to Syria.
The Applicant complained that he had been given relatively short notice of the hearing and that that placed him at a disadvantage. The Tribunal gave him the opportunity to make a written submission after the hearing and on 27 May 2004, the Applicant forwarded a submission to the Tribunal. He reiterated his claim that his brother had genuinely been tortured and that this substantiated his claim that he had a subjective and well-founded fear of persecution should he return to Syria.
He said that even though he had spent time in Dubai, which is near Syria, he had not been able to return to Syria even to see his elderly mother because he feared what would happen to him there. He worked as a teacher in Dubai and remained under surveillance by secret intelligence in that country. He said that he had contacted his mother and she said it would not be wise for him to return to Syria.
He said that during the hearing he was depressed and could not concentrate because he had been asked a lot of questions. He said that he felt helpless during the hearing and felt that the Tribunal member had been very tough on him during the hearing. He reiterated that if he were to return to Syria, he would face jail, dehumanisation and death through an unsubstantiated submission.
The Tribunal noted that it received a photocopy of a statutory declaration from a person who knew the Applicant for many years, who was aware of the fact that the Applicant's brother had been in jail. The Applicant also forwarded a translated letter from his brother, who stated that he had been imprisoned for over 19 years from 1981. He said he was not charged with any offences, but said that some other person under interrogation had said that the brother belonged to a political party and that he was against the Ba'ath Party.
The Tribunal considered the Applicant's claims. The Tribunal was satisfied that he had been given a proper opportunity to present his case, noting his request for a further hearing, although noting also that the Applicant had taken advantage of the opportunity to provide further submission. The Tribunal was satisfied that the Applicant was not involved with the Ba'ath Party and was not in fact involved in any other political party.
The Tribunal did find that the Applicant's brother had not been imprisoned for political reasons, so there was no potential imputed political association. The Tribunal did not accept that the Applicant was detained because he was suspected of speaking badly about the Ba'ath Party. In other words, the Tribunal did not accept that there were any political reasons for his detention. The Tribunal was not satisfied the Applicant had difficulties in obtaining his passport because he was of any interest to the authorities and noted that he had been able to have his passport whilst he was living in Dubai in 1999.
The Tribunal found as a whole that there was no Convention related reason as to why the Applicant could not return to Syria. As a result, the Tribunal could not be satisfied that the Applicant had a well-founded fear of persecution for a Convention reason. The Tribunal also noted that no specific Convention claims were made by or on behalf of the Applicant's wife and children, and indeed, they are not Applicants to these proceedings.
Interestingly, I note that at page 140 of the Court Book, the Tribunal made this recommendation, and I quote:
Whilst the Tribunal has found that the Applicant's harm is not Convention related, the Tribunal is of the view that this case warrants the Minister's consideration pursuant to s. 417 of the Act.
The Applicant lodged an amended application. He also filed an authority in which he authorised a friend, Toufic Laba Sarkis to assist him and asked the Court to allow Mr Sarkis, "To talk on my behalf and assist me as McKenzie friend on 13 August 2005". As I discussed during the hearing, I was happy to allow Mr Sarkis to sit with the Applicant as a McKenzie friend and take notes for him and discuss issues with him in the presentation of his case.
I was not prepared, however, to allow Mr Sarkis to speak on the Applicant's behalf, and I referred to the decisions of Federal Magistrates Court in Purcell v Rix (No. 1) [2002] FMCAfam 65, in which Driver FM conducted an extensive review of authorities relating to representation by unqualified persons, and I also had noted the decision of the Federal Magistrates Court in SZAAM v MIMIA [2003] FMCA 219 in which Driver FM followed his own decision in Purcell v Rix (No. 1). In my view, with respect, those decisions set out the law as they relate to s. 44 of the Federal Magistrates Act 1999.
The Applicant and his McKenzie friend had prepared a document of some eight pages which was typed in English, representing the Applicant's thoughts. Mr Sarkis had proposed to read that document onto the record. Whilst I was reluctant to allow that, I directed that a photocopy should be made and given to the counsel for the Respondent to read and I accepted the original document as a submission on behalf of the Applicant, and I have given it the consideration that I would give to any other submission by or on behalf of a party.
I look at the amended application that was filed on 24 November 2004 and note that the Applicant gives four grounds for the application. First, that the Tribunal failed to address the circumstances of the Applicant as per written statement and oral evidence, and recognise him as a refugee as a result of the true facts listed and acknowledged by the Tribunal. With respect, this appears to me to be a challenge to the Tribunal's decision on the facts, and I think trite law that merits review is not one of the functions of a Court conducting judicial review. The authority for this is the well-known case of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at page 272.
Indeed, even if the Tribunal did make a wrong finding of fact, as Mr Reilly of counsel for the Respondent submitted to me, that is not an error of law, let alone jurisdictional error. I am referred to the decision of Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The Applicant's second ground was that the Tribunal erred in law by denying the Applicant the right to comment on country information and the torture which his brother suffered, and which is the basis of a well‑founded subjective view of persecution. The question of country information falls within s.424A(3)(a) of the Migration Act, as Mr Reilly of counsel points out, and I note that the incarceration and torture of the Applicant's brother was in fact made clear to the Tribunal and the Tribunal referred to those circumstances at a number of places in the decision, including the findings and reasons at page 138 and 140 of the Court Book.
The third claim is that the rules of natural justice and fairness were breached, as the Tribunal made a decision and false conclusion on behalf of the Applicant, who is unable to go back to Syria. The ground also says the Tribunal failed to consider the circumstances of the Applicant's brother and even failed to arrange an interview to confirm what happened to him.
It is difficult to see how the rules of natural justice and fairness were breached. A decision on the facts, even if a wrong decision, is not a jurisdictional error, as I indicated earlier, and it is not a denial of natural justice. If an applicant is given the opportunity to present his or her case and lead appropriate evidence, there can be no denial of natural justice. It is not unfair to give an applicant the right to present evidence even if a Tribunal declines to allow a party the right to lead evidence that is clearly irrelevant.
The claim that the Tribunal failed to consider the circumstances of the Applicant's brother cannot stand, because the Tribunal clearly did. The fact that the Tribunal was not satisfied that the imprisonment of the Applicant's brother was for political reasons does not reflect a failure to consider the circumstances. All it shows is a consideration of the circumstances, but arriving at a conclusion that is not in the Applicant's favour. I am not satisfied that failing to arrange an interview to confirm what had happened to the Applicant's brother was necessary and there is no evidence that a request was made for the evidence of the brother to be taken.
The Tribunal did receive a letter from the Applicant's brother and a translation in English, and the Tribunal considered that letter, but made a decision that on the evidence before it the brother had not suffered imprisonment for reasons of imputed political opinion.
The fourth ground was:
Even the Minister failed to consider the circumstances under humanitarian grounds, in which case the Applicant merits ministerial intervention.
This ground is, to my mind, misconceived. The Court has no power to compel the Minister to intervene and give the matter consideration under s.417 of the Act. I note that the Tribunal, in what appears to me to be a humanitarian gesture, made a recommendation at page 140 of the Court Book by saying:
The Tribunal is of the view that this case warrants the Minister's consideration pursuant to s. 417 of the Act.
To my mind, this is clearly a statement to the Applicant that seeking the intervention of the Minister under s.417 may be an appropriate way for the Applicant to obtain the visa that he seeks. Surprisingly, the Applicant chose not to avail himself of this right to seek ministerial invention, notwithstanding the fact that the Tribunal member had made this rather unusual recommendation. It is a rare case where a member of the Refugee Review Tribunal makes such a recommendation and it is difficult to see why an applicant in receipt of such advice should fail to avail himself of it.
It is therefore not correct to say that the Minister failed to consider the circumstances under humanitarian grounds, in which case the Applicant merits ministerial intervention. If the Minister is not asked to intervene, the Minister can hardly be said to have failed to consider the circumstances.
I have read through the written submissions prepared by and on the Applicant's behalf. It is fair to say that the bulk of the submission relates to matters of fact which may or may not have been brought to the attention of the Tribunal. In any event, this Court, in conducting judicial review, does not make decisions on matters of fact. It does not have the power to do so. The submission does refer to activities of security forces operating in Syria, the fact that a number of unfortunate individuals maybe suffered from torture whilst under interrogation or detention.
The submission refers to the incarceration of the Applicant's brother and two cousins and refers to the letter from the Applicant's brother about the fact that he was tortured and ill treated. The submission refers to the fact that the Applicant had been detained for a period of 38 days in 1986, which the Tribunal accepted.
There are comments about, "A consistent hardening trend in the decisions of the RRT". That appears to be an editorial comment that I can really express no opinion about and it does not assist the Applicant. The submission refers to s.474 of the Migration Act and the principle of the privative clause and states that s.474 has a severe effect because it greatly reduces the ground on which such appeal, i.e. an application for review, can be made. Well, indeed it does, but that is the legislative framework within which the Court must work.
The submission refers to the positive step by the Tribunal in recommending that the Applicant should be considered on humanitarian grounds under s.417 of the Act, but it is not up to the Minister to make that decision in a vacuum. There is no suggestion that this decision was forwarded to the Minister for consideration and, in fact, it may be that the Applicant misconceived the recommendation, because it is up to the Applicant to write to the Minister and seek that intervention.
The Applicant raises concerns about the shortness of the notice that he says he received in attending the hearing and claims that the failure to postpone the hearing was an error of law although, in my view, the Tribunal has met any concerns there by permitting the receipt of post-hearing submissions, which were made and considered. The balance of the submission, to my mind, relates to factual concerns and a challenge to the factual findings of the Tribunal. The submission at page 7 claims that the Tribunal erred in law by failing to consider the real question that it had to decide, that the Applicant had a well-founded fear of persecution.
The submission goes on to concede:
It seems that the Tribunal accepted the Applicant's fear of persecution as well founded, but not meeting convention reasons.
I should make it clear that the test for having a well-founded fear of persecution for a Convention reason, it is not having a well-founded fear of persecution per se; unless that fear of persecution is for a reason under the Refugees Convention, it is not a matter which would entitle an applicant to be considered as a refugee. I have read through the submissions. I have read through the decision. I can see no other area which would persuade me that the Tribunal fell into jurisdictional error. In my view there is no jurisdictional error. The decision is a privative clause pursuant to s.474 of the Migration Act 1958. I dismiss the application.
I note that the member of the Refugee Review Tribunal took the view that the circumstances of the Applicant's case warranted the Minister's consideration pursuant to s.417 of the Migration Act. I am inclined to agree that this is an unusual case. It may be that the Applicant misunderstood the suggestion by the Tribunal member in the decision.
In my view, this is a matter where the Applicant would be well advised to consider making an application to the Minister for consideration under s.417 of the Migration Act. The Court has no power to compel the Minister to do so; it is entirely a function of the Minister, and it would be necessary for the Applicant to make such an application. It would be perhaps helpful if he were to forward to the Minister a copy of the decision of the Refugee Review Tribunal in which the Tribunal made that compassionate recommendation, and perhaps forward a copy of this decision as well, but it is entirely a matter for the Applicant to do and it is a matter that I would recommend to him that he give serious consideration to do so.
He is, after all, a father of five young children. He has a proficiency in the English language and it may well be that the Minister would consider that he and his wife and their children could well be people who would be worthy of consideration by the Minister to remain living in Australia. But, as I said, that is a decision for the Minister. I require a transcript of the reasons for my decision and the application will be removed from the list of cases awaiting finalisation.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 14 September 2005
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