SZERW v Minister for Immigration and Multicultural Affairs

[2006] FCA 770

FEDERAL COURT OF AUSTRALIA

SZERW v Minister for Immigration and Multicultural Affairs [2006] FCA 770

Migration Act 1958 (Cth)

House v R (1936) 55 CLR 499
Re Commonwealth of Australia and Another; Ex Parte Marks (2000) 177 ALR 491

SZERW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 20 of 2006

DOWNES J
24 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 20 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZERW
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

DOWNES J

DATE OF ORDER:

24 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS:

1.          Appeal dismissed with costs

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 20 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZERW
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	DOWNES J
DATE:	24 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a Lebanese Sunni Muslim from Tripoli. He has twice entered Australia. His first visit was in 1995. He entered Australia again in December 1996 pursuant to a three month visitor's visa. He travelled here on a Lebanese passport. On 25 February 1997 the appellant applied for a protection visa (class XA) pursuant to Australia's obligations under the Convention Relating to the Status of Refugees and its Protocol. The appellant's application was refused by the Minister's delegate and by the Refugee Review Tribunal. The decision of the Refugee Review Tribunal was given on 22 June 1998. There the matter stood until 12 November 2004, more than six years later, when the appellant made application to the Federal Magistrates Court for review of the decision of the Refugee Review Tribunal. The appellant was unsuccessful in that application and now appeals to this court.

2. Although the decision of the Refugee Review Tribunal was made before the privative clause provisions were inserted in the Migration Act 1958 (Cth), those provisions apply to this matter because they were in force at the time of the application. Accordingly, to succeed, the appellant must show not only that there was error of law on the part of the Refugee Review Tribunal but that such error amounted to jurisdictional error.

3. The appellant makes no complaints of conduct prior to his first visit to Australia. However, he says that on his return from that trip he was detained in Lebanon on two occasions. These detentions form the basis of his claim. Effectively he says that he fears persecution on his return to Lebanon by reason of his political opinion.

4. On the first occasion of which he complains he was detained on suspicion that he was an escapee from Syria. When he satisfied the authorities that this was incorrect he was released.

5. The second incident involves two aspects. It seems he was arrested because a friend he had known for a long time made contact with him. This friend had been involved with a group called the Lebanese Forces. The friend sought his assistance. This was declined, but shortly thereafter the appellant was arrested by the Lebanese army. He was held for some two weeks. Then he was taken by a Syrian security force which held him for more than three months. During this period he says he was treated badly. When he was released he made plans to come to Australia.

6. The application to the Federal Magistrates Court was heard by Smith FM. The appellant was represented by counsel. Two grounds were dealt with. The first ground was that there was a breach of the rules of procedural fairness. The second was that the Refugee Review Tribunal had identified wrong issues and asked itself wrong questions. The relevant particulars of the first ground were that the Tribunal failed to put to the appellant the Tribunal's view and the information on which it was based, that the appellant's friend was wanted by the authorities because of his involvement in criminal offences. The Tribunal said this:

   ‘The Tribunal finds that the applicant was detained because of his potential importance in a criminal investigation of his former acquaintance, not because of his political opinion or a political opinion imputed to him or any other Convention reason. The Tribunal does not accept that the applicant, a Sunni Muslim, faced an extensive detention as he was imputed to be sympathetic to the Lebanese Forces, the party of the Maronite Christians during the civil war (and an illegal organisation at the time of his detention). The applicant was not questioned about any involvement with the Lebanese Forces, and the issues about which he was questioned relate to his knowledge of his friend's movements and activities.  In any event, there is no evidence of systematic persecution of LF members- the independent evidence suggests that “the current situation is that thousands of former LF members and their families ... carry on their lives unhindered by the military/security forces”, and that arrests of LF members seem to be related only to serious offences:’ [Two cables of the Department of Foreign Affairs are then referred to]. ‘The Tribunal finds that the applicant's former school friend was wanted in relation to serious criminal offences, and this is the reason why the applicant was detained and questioned.’ 

   Smith FM found as follows in paragraphs [29] and [30] of his decision:

   ‘29. My difficulty with the applicant's argument, is that I am not persuaded that he was denied this opportunity.  The applicant's own claims implicitly assumed a background knowledge by the Tribunal of what were LF “operations” which would have led to the surveillance and pursuit of his friend, or implicitly invited it to acquire that knowledge for itself.  I am therefore not persuaded that the information in the DFAT cables had any element of “surprise” which would have required their contents to be put to the applicant.’

   ‘30. Moreover, I am not persuaded that the background to LF operations was not sufficiently canvassed with the applicant in the course of the hearing.  In the absence of a transcript, I am not prepared to draw this inference merely from the absence in the Tribunal's reasons of reference to these cables being “put” to the applicant.’

7. The second ground considered by Smith FM was that the following wrong issues or wrong questions were addressed by the Refugee Review Tribunal:

   ‘a) The Tribunal failed to consider “the ‘political’ nature of the imputed ‘criminal’ activity”.

   b) The Tribunal failed to consider “whether the Syrian authorities had a legitimate object in investigating criminal activities in Lebanon and, if not, whether such investigations were motivated by Convention based reasons”.’

   Smith FM dealt with this as follows:

   ‘20. However, I am not persuaded by these arguments that there was any issue which the Tribunal was required to address and omitted to do so. As I have indicated above, the Tribunal found that the Syrian authorities were acting in concert with the Lebanese authorities in conducting a criminal investigation into “serious criminal offences” and that there was no Convention reason for their treatment of the applicant. There was country information which allowed the Tribunal to reach this view, and counsel for the applicant did not contend otherwise.  This included information that the Syrian presence in Lebanon and its support of Lebanese security authorities was “legitimate” even if unpopular. It included information that recent LF “operations” included terrorist bombings and assassinations, calling for drastic security measures. I consider that its findings have a sufficient factual basis for its characterisation of the applicant's detention as lacking any Convention reason. I am not persuaded that the Tribunal's failure to provide further discussion of the “legitimacy” of the Syrian involvement in the criminal investigations revealed a failure on its part amounting to, or evidencing, jurisdictional error.’

8. There are two substantive grounds of appeal relating to these matters before me. They are as follows:

   1. ‘That the Federal Magistrate erred [at paragraph 29] in finding that the appellant was not denied an opportunity to respond to, or be made aware of, certain adverse information.’

   2. ‘That the Federal Magistrate erred [at paragraph 20] in failing to find that "the Tribunal's failure to provide further discussion of the legitimacy of the Syrian involvement in the criminal investigations" revealed a failure on its part amounting to ... jurisdictional error.’

9. I will deal with the two grounds separately. There will be occasions when procedural fairness requires information to be disclosed not because the content of the information is new, but because the affected person may wish to question its probity. Smith FM’s reference to the absence of any surprise as to the information argued not to have been disclosed may not have addressed this alternative. However, that was not the ultimate basis for his decision.

10. Possibly because of the delay in the bringing of these proceedings, not all the material relating to the determination of the Refugee Review Tribunal was available in the hearing in the Federal Magistrates Court. Properly understood, the decision of Smith FM was that he was not persuaded that the appellant was denied the opportunity he now complains of. This is made very clear in paragraph 30 which I have set out above. I agree that the case of denial of procedural fairness is not made out.

11. I turn to the second ground. The Parliament has committed the primary decision-making relating to applications for refugee status to the Minister's delegate with merits review before the Refugee Review Tribunal.

12. The role of the Federal Magistrates Court is a narrow role. It needs first to be shown that there is an error of law and in this case that that amounted to jurisdictional error. It is not open to that court to correct what it conceives to be incorrect findings of fact unless those findings of fact involve an error of law. It is no doubt for this reason that the ground of the application before the Federal Magistrate referred not to errors of fact but to identifying wrong issues and asking wrong questions. To my mind, however, the ground of appeal now relied upon is really an attack on the Tribunal's findings of fact.

13. In the Tribunal's lengthy reasons it sets out and discusses the issues arising in the application in considerable detail. I do not think it can be said that either of the grounds relied upon before the Federal Magistrate in support of this ground of application for review can be made out. The most that might be said, it seems to me, is that the Refugee Review Tribunal did not sufficiently address why he was treated as he was while in detention. However, it seems to me that such an approach requires too fine an analysis of the Tribunal's reasoning.  Tribunal reasoning is not to be subjected to such narrow analysis. I agree with the observations made by Smith FM relating to the ground.

14. It follows that the ground that the Tribunal should have further discussed the legitimacy of the Syrian involvement in the criminal investigations is not made out. Because I have found against the arguments of the appellant on both of the substantive grounds of appeal it follows that the appeal must be dismissed. However, that is not an end of the matter.  Smith FM decided that even if he were wrong in the conclusions to which he had come on the substantive matters, he would nevertheless have exercised his discretion against granting relief.  This was because of the delay in bringing the proceedings.

15. In SAAP v The Minister for Immigration [2005] HCA 24 at [80], McHugh J said that delay alone was a basis for refusing discretionary relief in an application for review such as this. Based on this proposition Smith FM stated that he would have dismissed the application before him even if he was wrong in his other reasons. In coming to this conclusion, Smith FM was exercising a discretion. Such exercises of discretion are capable of being reviewed on appeal only if the exercise of the discretion is tainted with legal error (House v R (1936) 55 CLR 499).

16. I am not satisfied that there is any legal error attending Smith FM’s discretionary refusal of the appellant's application. It is true that he refers to the decision of McHugh J in Re Commonwealth of Australia and Another; Ex Parte Marks (2000) 177 ALR 491 in support of his decision and that case relates to circumstances existing when there is a time limit for the making of an application for review. The present is, of course, not such a case. However, I do not understand the reasoning of Smith FM to have proceeded on any mistaken basis that either there was such a time limit in the present case or that he applied reasoning only relevant to such a case from McHugh J’s judgment. It seems to me that Smith FM was simply referring to the observations of McHugh J relating to delay as such. Accordingly, I do not consider that the discretionary decision of Smith FM could be reversed on appeal.

17. The appeal must be dismissed. The appellant resists the respondent’s application for costs. The ordinary rule in this court is that costs follow the event. The basis for the application is the appellant’s impecuniosity. That seems to me to be a basis upon which the appellant may be able to resist any attempts to seek payment pursuant to the order for costs, but is not a basis upon which the order should not be made in the first place. Accordingly, the order of the court is that the appeal is dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes

Associate:

Dated:            24 May 2006

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First and Second Respondents:	S A Mason
Solicitors for the First and Second Respondents:	Phillips Fox
Date of Hearing:	24 May 2006
Date of Judgment:	24 May 2006