SZEIK v Minister for Immigration
[2005] FMCA 777
•23 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEIK v MINISTER FOR IMMIGRATION | [2005] FMCA 777 |
| 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 Lebanon – claim of well-founded fear of persecution after threats by members of Lebanese Forces – where shots fired at applicant’s house and applicant’s house bombed – Tribunal found applicant suffered from anxiety and had been subject to threatening and intimidatory behaviour – fact finding a task of the decision-maker – no reviewable error. PRACTICE AND PROCEDURE – Competency – where application was made 8 years after decision handed down – applicant joined class action on 16 July 1999 – whether relief should be refused because of unwarrantable delay – circumstances in which stay may be ordered – costs – time delay. |
| Judiciary Act 1903 (Cth) s39B Migration Act 1958 (Cth) ss475A, 477 |
| R Australian Broadcasting Tribunal; ex parte Fowler & Ors (1980) 31 ALR 565 – cited Re MIMIA; ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZEIK |
| Respondent: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
| File Number: | SYG 2747 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 May 2005 |
| Date of Last Submission: | 9 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2005 |
REPRESENTATION
| Solicitors for the Applicant: | In person (with a McKenzie friend) |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $5000.00.
I allow six (6) months to pay the costs.
That the operation of Orders 1 and 2 is stayed for a period of twenty-one (21) days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2747 of 2004
| SZEIK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 23 December 1996. The decision of the Tribunal was that the Tribunal was not satisfied that the applicant was a refugee and affirmed the decision not to grant a protection visa.
The application has taken a long time to reach the Court. The applicant joined a class action on 16 July 1999 and was refused an order nisi on 20 February 2004. The applicant's documents do not indicate why there was a delay between 23 December 1996 and the date the applicant joined the class action on 16 July 1999. As well as this the applicant has not set out why it took from 20 February 2004 until 6 September 2004 for him to file his application in this Court. These are matters to which counsel for the respondent, Mr Johnson, has referred me to in support of his application that even if the Court were satisfied there was a jurisdictional error in the decision of the Tribunal that the Court should find there is an unwarrantable delay and should therefore decline to grant relief.
The applicant is a national of Lebanon. He arrived in Australia on
14 August 1993. On 12 November in that year he applied for refugee status and a domestic protection temporary entry permit. The application for that permit also had effect as an application for a protection permanent entry permit which related to the documents that were in use at that time.
On 31 March 1995 the delegate for the Minister refused the application. On 28 April 1995 the applicant lodged an application for review with the Refugee Review Tribunal and on 23 December 1996 the Tribunal affirmed the decision of the Minister's delegate and found that the applicant was not a refugee.
The applicant stated in his evidence to the Tribunal that he was born in Zahle in Lebanon. He moved to Beirut with his family and studied law at university. He graduated in 1987 and was then employed in a firm with two other lawyers until 1992. He then went into practice on his own account. He is a Catholic by religion. He submitted a statement in support of his application for refugee status that as a lawyer he had a high profile in Beirut from handling divorce cases. Not surprisingly this was looked upon unfavourably by devout Catholic members of the population and he received threats to his life. He said that in five years of legal practice he handled eight divorce cases. In Lebanon matrimonial cases are handled by religious tribunals where Catholics are concerned and whilst divorce is not allowed annulments are available in certain limited circumstances.
The applicant said that on two occasions in the six months before he left Lebanon he had been threatened by disgruntled parties on the opposing side of matters in which he had acted. He said that because divorce was so sensitive, not just the parties themselves but also their families became involved, and he often felt threatened by them as well. He also informed the Tribunal of instances when he had been threatened while acting in other types of matters including one occasion when he attended a meeting of the parties engaged in a particular matter and shots were fired by one of those present. He said that he had not received general threats in the context of his carriage of divorce cases although it had been suggested to him that he should leave that area of practice. The threats he did receive were in the specific context of individual cases.
He also said that he had been threatened by members of the Lebanese forces which are the foundation of his claim for refugee status. The Lebanese forces controlled the area in which he and his family lived until 1987. The family home was very close to the LF military headquarters and because of this he felt under considerable pressure to become involved with the LF. He said, however, that his political views were very different from the LF and he did not talk about the LF ideology.
He said that he suffered intimidation from the LF. On one occasion they put a photograph of a dead man on his car whilst he was in a shop. They continued to send members of the LF to speak nicely to him in order to persuade him to join but he continued to refuse. He had articles published in daily and weekly papers in which he criticised both the LF and the occupation of Lebanon by foreign forces, both the Israelis and the Syrians.
More disturbingly he said that a year or so later his house was bombed, he believed that the LF was responsible. He was unable to be precise about the timing of the bombing in his evidence to the Tribunal. He said that his bedroom was mainly affected by the blast and a piece of the bomb casing which was found had writing on it in Hebrew. To his mind that showed that it was the work of the LF who had received weapons from Israel. This attack had occurred a short while after he had received threats and after the bombing he said he was told by LF members that the LF was responsible.
In 1989 and 1990 the LF was engaged in fighting with Christian Lebanese army units loyal to General Aoun and after the Syrians occupied the Karantion region the fighting continued after that time. The applicant returned there to open his own legal practice in 1992 and rented an office. He referred to an occasion where he heard machine gun fire in the street and three bullets entered his office. Sometime later a military unit arrived and they told the applicant that the man responsible was drunk and that there was no particular significance so far as he was concerned. He said that since he has been in Australia his family has received further threats against him and his brother's car had been fired at.
The Tribunal found the applicant to be an essentially credible witness and accepted that he is suffering from anxiety and this causes symptoms such as lack of concentration and poor memory. The Tribunal accepted that the applicant has been subjected with threatening and intimidatory behaviour over a number of years. The Tribunal found that the treatment had been directed at the applicant in the course of his practice as a lawyer and also because of his relationship with the militia. The Tribunal accepted that the applicant had lived through a 16 year civil war in which civilians were not only the victims of atrocities directed against them as members of a religious community, but were also the random victims of shelling, aerial bombing, car bombs and various other forms of warfare.
The Tribunal accepted that all of those factors had combined to create a very genuine fear in the mind of the applicant. However, the Tribunal found that that was not a sufficient basis for the granting of refugee status. The Tribunal accepted that the applicant's home was damaged by an explosion of some kind and that his room may have suffered the most extensive damage. The Tribunal however did not accept that the bomb was placed by the militia in an attempt to kill the applicant or to intimidate him.
The Tribunal said that it had taken into account that the applicant did not mention prior to his interview with the department that his home had been bombed and this cast considerable doubt as to the significance that the applicant actually attributed to the event. The Tribunal did not accept the applicant's explanation at the hearing for his failure to mention it in his application.
The Tribunal noted that the applicant's application was completed with the assistance of an adviser. The Tribunal found the incident was no more complex than other matters which were mentioned in the statement translated by the applicant's aunt, and the Tribunal did not accept the inadequacies in her ability to translate accounted for the applicant's failure to mention that incident. The Tribunal also noted the applicant had given different dates for the event.
The Tribunal accepted the applicant's account of shots having been fired at his office but rejected his assertion that this incident itself was persecution or indicative of very serious intention on the part of the militia to harm him. The Tribunal found that because of the applicant's anxiety and the considerable stress that the applicant was under at the time, he had attributed a significance to this incident which it did not have.
The Tribunal accepted that the shots fired at his office may well have been the work of a drunken gunman as had been indicated and found that this harm could not be construed as harm directed at the applicant for a Convention reason and it did not support his claim that the militia had demonstrated the real attention to causing serious harm. The Tribunal did accept that the applicant had been threatened on numerous occasions in a variety of ways over an extended period of time. The Tribunal found that it was possible that in some circumstances a campaign of threats and harassment directed against a person for a Convention reason could be considered to be persecution. But the Tribunal found that it was clear in this case that most of the incidents described by the applicant were not directed at him for a Convention reason.
The applicant claims that the Tribunal erred in law in construing the Refugee Convention and that that error had resulted in the Tribunal failing to exercise its jurisdiction under the Migration Act. The applicant said the Tribunal had erred in law in finding that there was no real chance that the applicant faced serious harm from the militia if he should return to Lebanon. The applicant said that he was denied procedural fairness and the Tribunal found that he had no real chance of facing series harm from the militia if he were to return.
He said there was no probative evidence upon which the Tribunal could have found that the applicant did not face serious harm from the militia if he were to return. He said the Tribunal should have provided the applicant with an opportunity to raise evidence about how the threats by the militia have amounted to serious harm from them, he said it was a denial of natural justice to make a positive finding of fact on a critical matter without any probative evidence. He said that he was denied procedural fairness and the Tribunal had breached the provisions of s 424A(1) of the Act in failing to disclose to the applicant the country information cited at pages 9, 10 and 11 of the decision and failed to provide him with an opportunity to make relevant submissions about the militia's role in Lebanon.
The respondent submits that there is no jurisdictional error in the Tribunal decision and that because of the unwarrantable delay in bringing the application for review and because of any jurisdictional error, the application should be dismissed.
The applicant was assisted in the proceedings by an interpreter, he was not legally represented. However a friend of his, a Mr Toufic Sarkis sought permission from the Court to act as a McKenzie friend.
I granted that application. The applicant submitted that he had applied to join a class action which was being launched by a solicitor named Adrian Joel and that action was instituted on 16 July 1999. He said that that particular solicitor of the firm previously worked with the firm Parish Patience. He did say that no earlier application had been lodged to the Federal Court which had jurisdiction in those days and said it took a long period for him to join the proceedings. One of the difficulties was that he could not initially cover the expenses. Those proceedings came to an end in February 2004 and he brought this application on 6 September.
Referring to the applicant's submissions he said the Tribunal had made a mistake in the law. He sought to draw the Court's attention to the way that the Tribunal had conducted the hearing. He prepared a handwritten transcript from the tapes of the hearing. That transcript was made available to the Court and I adjourned the proceedings to allow counsel for the respondent, should it be necessary, to make further submissions as a result of what was in the transcript. I formed the view that the transcript prepared by the applicant did not disclose any matters to which counsel for the respondent need reply.
The applicant submitted that the Tribunal could not find why he was targeted by the militia. He was a lawyer, he had standing in the community. He said the Tribunal did not ask the right questions. In the applicant's first interview with a delegate of the Minister he was accepted as a credible witness and he was accepted as a person who was a presentable witness.
The applicant submitted that he was suffering from depression as a result of his experience. In fact one of the matters which caused his depression or exacerbated it was the unfortunate death of his brother and his wife in Lebanon in August 1999. That of course is not a matter that is relevant to the Tribunal hearing but adequately explains a reason why the applicant's depression would be continuing until the present day. The respondent has not sought to submit to the Court that the applicant was otherwise in such a state.
The applicant submitted that the Tribunal had applied the wrong test and submitted that the applicant deserved to be asked questions about his well founded fear of persecution. He submitted that the Tribunal had ignored his original application for a protection visa and it was not in the court book. The Tribunal, he submitted, could have questioned him as ti what information he originally gave to the department. The applicant submitted that he did write articles when he was in Lebanon and that was a very good reason as to why he was targeted.
The applicant has not been able to afford legal representation as was succinctly put by his McKenzie friend, the applicant is "broke". He has a brother who is an Australian citizen but will not ask him for money. When he was able to work he was not able to work as a lawyer but he worked as a labourer.
It was submitted that if the applicant was unsuccessful in his case that the Court should not make an order for costs against the applicant on the basis that the Department of Immigration and Multicultural and Indigenous Affairs can afford the money but the applicant cannot.
I have read the respondent's outline of submissions prepared by Mr Johnson of counsel. At paragraph 4 of the submissions counsel takes issue with the lengthy delay in bringing these proceedings, although it points out that not all of the time since 23 December 1996 would be relied upon by the respondent in seeking dismissal on this basis. The respondent accepts the fact that the applicant was joined to a representative action, the Lie representative action, on 16 July 1999 and was refused an order nisi on 20 February. As a result of undertakings previously given in those proceedings the respondent did not rely on any defence of res judicata or issue estoppel or Anshun estoppel based on those prior proceedings or the dismissal of those proceedings and the respondent did not rely upon the effluxion of time between the applicant being joined to the class action and the refusal of the order nisi. What the respondent does rely upon is the delay between the handing down of the Tribunal's decision on 24 December 1996 and the date upon which the applicant joined the class action which was 16 July 1999, a period of 934 days. The respondent also relied upon the delay between the refusal of the order nisi which was 20 February 2004 and the filing of this application which was on 6 September 2004, a further 199 days.
Counsel pointed out that those two periods total 1134 days which is more than three years. Counsel submitted that the delay is an unwarrantable one by reason of its length and by reason of the lack of any satisfactory explanation for not bringing the applicant's claim in a timely way.
Counsel submitted to the Court the Court does have discretion to dismiss an application for a constitutional writ in cases where there has been an unwarrantable delay and the Court has the power to exercise its discretion against an applicant without determining whether there has been any jurisdictional error. See R v Australian Broadcasting Tribunal ex parte Fowler and Ors (1980) 31 ALR 565 and submitted that the present application could be dismissed upon that basis.
Mr Johnson also submitted the Court's discretion to dismiss the application is not affected by whether the decision is a privative clause decision or not. In any event, he submitted, the application did not have any merit. The fact is the Tribunal accepted a lot of the applicant's evidence but significantly either did not put weight on those parts of the evidence that it did accept or pointed out the inconsistencies in the applicant's evidence. The Tribunal did accept that the applicant had been threatened on numerous occasions in a variety of ways over an extended time and accepted that in some circumstances a campaign of threats and harassment directed against a person for a Convention reason could be considered to be persecution, however, the Tribunal had found that in this case it was clear that most of the incidents described the applicant were not, in the opinion of the Tribunal, directed against him for a Convention reason.
The applicant had submitted what appeared to be a breach of the rules of natural justice but the transcript of proceedings does not support any claim for denial of natural justice or procedural fairness. The Tribunal seems to have based its decision upon its dissatisfaction from the applicant's evidence that he had met the criteria.
The Court of course does not have the power to reconsider all of the evidence and form a conclusion as to whether the Court would have accepted the applicant's claim. Fact finding is particularly a task of the Tribunal. It was for this reason that the respondent submits there is no procedural fairness, no denial of natural justice, the Tribunal made its findings on the facts of the applicant's claim, for that reason counsel for the respondent admits there is no jurisdictional error and the application should be dismissed. He also submits that even if the Court were to find that there was jurisdictional error the lengthy delay would be such as to be an unwarrantable delay and therefore the Court should deny relief on this basis.
I have considered the evidence, I have considered the submissions and indeed I have noted the matters brought to the attention of the Court by Mr Sakis, the applicant's McKenzie friend. The applicant certainly has great cause to be grateful to his friend who has provided him with a great deal of support in these proceedings, not only today, but also when the matter came before the Court on the last occasion.
I am not satisfied that there is any breach of natural justice. I am not satisfied that there is any breach of procedural fairness. It appears to me that the Tribunal's decision has been based on its assessment of the applicant's evidence. In saying that whilst I am of the view that the Tribunal's assessment of the evidence appears to me to be a particularly hard decision and that the evidence as it appears in writing would have been sufficient in my view for the Tribunal to have considered the applicant's case more favourably, it is not the function of the Court to hear matters on a de novo basis. It is not the function of the Court to substitute its own view of the facts for that given by the decision-maker. The decision-maker made some findings as to the applicant's credibility and that of course is a matter for the Tribunal "par excellence" to use the phrase by McHugh J, of the High Court in Re MIMA ex parte Durairajasingham (2000) 168 ALR 407 at 423 and in paragraph 67. The Tribunal in certain areas found that the applicant was not a credible witness and was not prepared to find that his account of the facts, be they threats, be they the bombing of his house which the Tribunal accepted had happened and the shots fired into his house, were sufficient to find that he had a well founded fear of persecution for a Convention reason.
The unwarrantable delay is also a matter that the Court needs to consider. There was acceptance by the Tribunal at the time that the applicant suffered from anxiety. Whether that could be sufficient to justify no action being taken for the period in excess of two years before joining the representative action is a matter of some doubt. There is certainly insufficient medical evidence to confirm that. It may well have been that the applicant became depressed at the violent death of his brother and sister in law. It would be surprising if he were not, but again there would need to be medical evidence to indicate why it was that the onset of that depression would, if such it were, would stop the applicant from bringing proceedings in this Court in an otherwise timely way.
The overall period of delay in bringing the matter to this Court, as counsel for the respondent pointed out, is 1134 days. It is a very long time to delay proceedings and that does not take into account any of the representative action time. It is, to my mind a strong reason, a discretionary reason for refusing relief if I were to be satisfied that a jurisdictional error had been found.
The decision, therefore, must be that the application is dismissed. I am mindful of the fact that the applicant has suffered as a result of his time in Lebanon and this decision will certainly be a decision that he finds a hard one. I am mindful of the fact that I have described the Tribunal's decision as a hard decision, but a hard decision on the facts but that is not sufficient for me to find jurisdictional error. It may be that the applicant wishes to exercise his right to appeal in the Full Court of the Federal Court, he would need to do so within 21 days from the decision being handed down.
I am mindful of the fact that this Court is producing a significant number of decisions, in fact this is the second judgment I have handed down today. I note that in the previous three weeks in this Court alone we have finalised 29 matters. Most of those matters have required a decision by the Court with reasons and those decisions have all been delivered on an ex tempore basis. This has required a significant number of transcripts, as a result it is hardly surprising that the transcription service is having trouble keeping up with the vast number of judgments that are currently being turned out and the figures that I have given are not just special to me, this is just one Court.
On a number of occasions recently I have received requests from parties, either applicant or respondents, to make an order for some form of a stay so that parties could wait until they actually receive a transcript of the reasons before framing an appeal. And I am mindful of the fact 21 days is not a particularly long time especially when English is not one's first language and especially in the case of people whose funds are such that they may need to make some arrangements to get legal advice.
In this case my view is that if the applicant wishes to avail himself of his right to appeal he would be well advised to obtain legal advice. What I propose to do is to stay the operation of these orders for a period of 21 days so that if the applicant does wish to avail himself of his right to appeal that he will have some additional time to do so.
I have considered that the stay is a discretionary matter, I have noted the amount of time that the applicant has been in Australia and in my view a 21 day stay is not an unreasonably long period of time to assist this applicant. I am mindful of the fact that he has suffered from anxiety and depression and that it is well known within our community that depression can slow people's reactions and make them less decisive than those members of the community who do not suffer from depression.
I do not intend to impose a mandatory stay of 21 days or any other period of time in respect of any other decisions that I hand down, but in this case in my view the interests of justice warrant a stay for a period of 21 days. I propose to stay the operation of these orders for 21 days.
I order that the applicant is to pay the respondent's costs fixed in the sum of $5000. However, I will allow six months to pay for those costs. I will order a transcript of my reasons for this decision.
I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 7 June 2005
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