SZEUV v Minister for Immigration
[2005] FMCA 1365
•30 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUV v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1365 |
| MIGRATION – RRT – Lebanese claimed persecution as Aounist – disbelieved by Tribunal – information taken from passport as part of reasons – passport shown at Tribunal hearing – within exemption from s.424A(1) – no error found. |
| Migration Act 1958 (Cth), ss.422B, 424A, 424A(3)(a), 424A(3)(b), 426(a), 474(1), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Abebe v Commonwealth (1999) 197 CLR 510 M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 SAAPv Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZEUV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2042 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 30 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms K Morgan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2042 of 2004
| SZEUV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) which seeks judicial review remedies in relation to a decision of the Refugee Review Tribunal dated 20 January 2003, and handed down on
12 February 2003. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant qualifies for a refugee visa or is entitled to any other permission to stay in Australia.
The present applicant visited Australia in 1997 and 1999, and arrived on the last occasion in February 2001 on a three month visitor’s visa. On 7 March 2001 an application for a protection visa was lodged on behalf of the applicant by a firm of solicitors. In the body of the application, reference was made to the applicant's passport on which he travelled, and copies of it appear to have been provided to the Department in the course of considering the application. The passport showed a previous arrival in Melbourne on 28 November 1997 and departure on 31 December 1997; an arrival on 2 February 1999 and departure on 2 May 1999; and the last arrival on 7 February 2001. The passport was that of a national of the Lebanon and showed him returning to that country after his visits to Australia.
A statement attached to the visa application gave a history upon which the applicant claimed to be entitled to protection from Australia under the Refugee's Convention. He said:
Since I was born I have known that the Syrians killed my father.
I feel hatred towards them. I feel very attached to my country and that we should try to liberate it.
He indicated that he had "joined" the political movement conducted by General Aoun, and that as a result “the Syrians were harassing me continually”. He claimed to have been beaten and persecuted during his trips to university, and that after he joined the army:
They made me feel that I was different to the others. I was treated differently and I was located to the harshest locations just to get rid of me.
He claimed to have been, “tortured badly”, although the particulars of when this occurred were not given. He said:
After my release the problems did not cease. Unknown members used to knock on my door and run away. They used to write on my walls, that they want to kill every person who support General Aoun. That made me fear for the life of my mother and my sisters.
We hardly left the house. They use to fire bullets above the house. Every time I was asked to come to their compound I was beaten just to remind me that they still exist. I had constant fear for my lief and I use to feel the pain in my body.
I had no choice but to leave my country. I was very fortunate to be granted a visa to come to Australia. I always heard that this country is the country of freedom and human rights.
He explained his return to Lebanon after previously applying for a protection visa in Australia on an earlier visit, on the basis that:
I received a letter saying that the situation in Lebanon has improved and that I can return. I was encouraged to return to my country believing that all the problems are over. I was shocked to discover that the problems still exist.
The delegate refused the application on 8 June 2001, and the applicant appealed to the Refugee Appeal Tribunal assisted by his solicitor. Consideration of his matter seems to have become protracted.
The applicant was invited to a hearing before the Tribunal by letter dated 21 November 2002. The letter invited him to attend on
17 January 2003, and specifically told him:
If you have a passport you should bring it to the hearing.
Although the transcript of what happened at the hearing is not before me, the Tribunal refers in its reasons to it having sighting the applicant's passport at the hearing, and the applicant today has not disputed that this happened.
The Tribunal in its reasons under the heading "Written Claims and Information provided in the Applicant's Protection Visa Application" said:
Personal and travel details
The applicant,(name) is a 30-year old citizen of Lebanon. He was born in (name) village in (district) Lebanon. He speaks, reads and writes Arabic. The applicant underwent 19 years of education from 1978-1997. The applicant departed Lebanon on 31 October 2000 on a passport issued legally and without difficulty by the Lebanese government on 11 September 1997 and valid until 10 September 2002. From 1987 until his departure from Lebanon in 2001 he resided at the same abode. The applicant made a number of trips to Australia prior to his current one. He came to Australia on 28 November 1997 until
31 December 1997, and again in February 1999 until May 1999. On his second trip to Australia he applied for a protection visa..
The Tribunal then said under a further heading "Oral Evidence – The Tribunal Hearing":
The Tribunal asked the applicant to confirm that the details in his application to the Department of Immigration to this Tribunal are true and correct to the best of his knowledge and belief. The applicant confirmed that they were.
It then over several pages recounted the applicant's responses to questioning by the Tribunal. It is clear that the Tribunal asked the applicant questions about his earlier travel to Australia and, in particular, its concern that, in the light of country information which was put to the applicant, this might appear inconsistent with a claim to be at risk of persecution for political reasons. The description of the hearing included:
The Tribunal asked the applicant to comment on the following information:
According to DFAT Country Information Report No. 182/96 [CISNET Document No.: CX14859, 23 February 1996]:
“SECURITY CHECKS ARE CARRIED OUT ON PEOPLE DEPARTING BEIRUT AIR - OR SEA PORTS, AND IT IS ALMOST CERTAIN THAT ANYONE WANTED BY EITHER OR BOTH STATE AUTHORITIES WOULD BE DETAINED … IT UNLIKELY THAT PERSONS WANTED IN CONNECTION WITH GRAVE OFFENCES COULD CIRCUMVENT SECURITY PROCEDURES IN THIS MANNER.
The Tribunal noted that if the applicant was of any adverse interest to the Lebanese authorities or the Syrian authorities he would have been unable to depart the country, return, depart, return and depart again. The Tribunal asked the applicant if he wished to comment. The applicant stated that about 40% of the population are wanted so if they are all prevented from leaving the situation would be grave.
The Tribunal also said that, in particular, it put to the applicant information from a Canadian report concerning the situation of followers of General Aoun in the Lebanon, and asked him to comment. It also questioned him in the light of information concerning immigration, and security and identity control checks facing people who departed from Lebanon. It said:
The Tribunal asked the applicant who he thinks would be after him if he returned to Lebanon. The applicant stated both the Lebanese and Syrian government. Tribunal noted that if he was wanted by either the Syrians or the Lebanese government he would have been unable to travel in and out of Lebanon as he has done. The Tribunal asked the applicant if he wished to comment. The applicant stated that a lot of people are persecuted and they cannot get them all. If they prevented people from travelling this would be noticed by the media.
The Tribunal then set out extracts from country information relevant to the applicant's claim.
Under the heading "Findings and Reasons", the Tribunal said:
The Tribunal is satisfied that the applicant (name) is a citizen of Lebanon and is supported in this finding by the applicant's passport [sighted at hearing] issued by the Lebanese Government. The Tribunal will therefore assess the applicant's claims against Lebanon.
The Tribunal has grave doubts about the applicant's credibility as his claims are contradicted by the independent evidence to which the Tribunal gives weight over the applicant's allegations.
The Tribunal then explained why it found “the applicant's claims and evidence to be lacking in credibility” in relation to his claims to have been persecuted as “an ordinary member of the Aounist movement.” Essentially, its first reason was country information that ordinary members of the Aounist movement would not have received “the type of extreme attention to which he claims to have been subjected to by the Syrian authorities and the Lebanese authorities”.
The Tribunal then gave a second reason for not accepting the applicant's claims:
Secondly, because although the applicant claims to have been of significant adverse interest to the Syrian and Lebanese, the fact remains that he was able to obtain a passport in the usual manner, depart for Australia in November 1997 return to Lebanon in December 1997, depart again for Australia in February 1999 and return in May 1999 and depart finally in February 2001 without any adverse consequences and without incident.
…
The fact that the applicant was able to depart and return on a number of occasions without any adverse consequences and without incident leads the Tribunal to the conclusion that he is of no adverse interest to either the Lebanese authorities or the Syrian authorities.
The third reason given by the Tribunal for not accepting the applicant's claims, was that independent evidence suggested that:
Syria does not attempt micro-control and does not greatly care that opposition politicians and whole districts seethe with loudly voiced anti-Syrian sentiment.
The Tribunal said:
In light of this independent evidence, the Tribunal is satisfied that the applicant does not have a well-founded fear of harm simply because he has criticised Syria.
Since it was not satisfied that the applicant had a well-founded fear of harm for a Convention reason in Lebanon in the foreseeable future, it affirmed the delegate’s decision.
The application in this Court has been prepared without any apparent assistance from a lawyer, and the applicant has understandably not fully understood what issues could be addressed by the Court.
He presented two statements affirming his claims to be a refugee and seeking to explain some of the adverse matters addressed by the Tribunal. However, as I have explained to him, it is not my function to reconsider the fact-finding performed by the Tribunal. I do not consider that the applicant’s written statements raised any ground of jurisdictional error affecting the Tribunal decision.
His application makes two contentions which might appear to raise jurisdictional errors. The first is:
The Tribunal failed to put to me important country information for my comment, including the following: (i) DFAT report regarding Aounist; (ii) DFAT report regarding airport security checks.
However, in my view, the information relied on by the Tribunal from this material was in fact canvassed fairly by the Tribunal with the applicant during the hearing. The material was of a general nature which is excluded by s.424A(3)(a) of the Migration Act from any obligation to raise it by way of written invitation for comment. Although s.422B would not apply to the present matter so as to make s.424A exhaustive, I am satisfied that there was no breach of procedural fairness in relation to country information relied on by the Tribunal.
The second contention made by the application was:
The Tribunal failed to put to me issues regarding credibility
However, this has not been expanded upon by the applicant in written nor oral submissions. I accept the general submission of counsel for the Minister that the Tribunal was not bound to foreshadow to an applicant its findings in relation to credibility where they arose from an assessment of the evidence given by the applicant (see Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [187]-[188] and Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 per Gaudron and Gummow JJ at [76]).
I therefore do not think that the application made out any grounds of jurisdictional error.
However, recent developments caused me to raise a further point with counsel for the Minister, and the hearing was adjourned to allow the Minister to address a concern arising from the then recent decision of Jacobsen J in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 concerning the effect of SAAPv Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and previous Full Court cases concerning the obligations on the Tribunal under s.424A when relying upon information specifically about the applicant which had reached the Department file prior to the application for review. In NAZY, his Honour considered that the exclusion under s.424A(3)(b) of the duty to invite written comments did not apply where only a general confirmation of the details of the visa application was obtained by the Tribunal at the start of its hearing, as occurred in the present case. The exemption applies if information used by the Tribunal was information “that the applicant gave for the purpose of the application”.
It is clear from the present Tribunal's reasoning, and counsel for the Minister accepted, that information was taken by the Tribunal from the applicant's passport concerning his previous travel to Australia, and that this information did form “a part of the reason, for affirming the decision that is under review” within s.424A(1)(a). Counsel also conceded that no written invitation to comment was given. Counsel for the Minister submitted, however, that no jurisdictional error occurred. She submitted that the exemption in s.424A(3)(b) was applicable to the passport information used by the present Tribunal, due to circumstances upon which NAZY could be distinguished, and which showed a “re-publication” to the Tribunal of information previously given to the Department.
There may be a live issue in the Federal Court whether information given by an applicant in support of his visa application but prior to his application for review is within the s.424A(3)(b) exemption (c.f. VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [20]). No doubt this will be clarified in due course, but at present I think I should follow considered statements that appear to have majority support in the Full Court, even if they are technically obiter. I am certainly not prepared to conclude that they are plainly wrong. Similarly, I am not prepared to conclude that Jacobson J's reasoning in NAZY was "plainly wrong" as to the insufficiency of a general confirmation given by an applicant to a Tribunal. I therefore do not consider myself to be in the position where I should decline to follow his Honour's opinions (c.f. Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [38]).
However, I accept counsel for the Minister's submission that NAZY is distinguishable from the present, and that the present case more closely parallels SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034 and M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131.
In particular, I consider that the presentation by the applicant of his passport and the information contained in it to the Tribunal, and his questioning about it by the Tribunal at its hearing, amounted to the "giving" to the Tribunal of the information contained in his passport, not only in relation to his nationality but also in relation to his movements. There was, in my opinion, an implicit invitation by the applicant for the Tribunal to refer to information in the passport for the purposes of deciding his application for review. Given the procedures in fact followed in this Tribunal generally, it is not easy to apply the test proposed by Jacobsen J in NAZY of whether information was "put forward in chief", but as I understand his Honour's intent this has happened in the present case in relation to the passport information.
I therefore do not consider that jurisdiction error has occurred in the present case due to any failure by the Tribunal to put to the applicant in a written invitation under s.424A(1) the information it obtained from his passport as to his movements, which in part led it to find against his claims to fear harm for a Convention reason if he returned to Lebanon.
For the above reasons I have not found the Tribunal decision to be affected by any jurisdictional error. The decision is therefore a "privative clause decision" within s.474(1), and I am obliged to dismiss the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 28 September 2005
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