SZFCX v Minister for Immigration
[2005] FMCA 529
•13 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFCX v MINISTER FOR IMMIGRATION | [2005] FMCA 529 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of 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 by Syrian agents in Lebanon – no reviewable error. PRACTICE & PROCEDURE – Notice of objection to competency – where application was not filed until more than one year and four months after applicant’s involvement with earlier class action ceased – application more than 6 years out of time. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 474, 477
| Applicant: | SZFCX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3477 of 2004 |
| Delivered on: | 13 April 2005 |
| Delivered at: | Sydney South |
| Hearing date: | 13 April 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr Braham |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Application is not competent.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3477 of 2004
| SZFCX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The application before the Court today is an application for review of a decision of the Refugee Review Tribunal. The application was filed on 26 November 2004. The Applicant asks the Court to review the Refugee Review Tribunal’s decision, which was made on 28 October 1997. The Minister has filed a notice of objection to competency, objecting to the jurisdiction of the Court to try the application.
The ground for this application is under sub-section 477(1A) of the Migration Act, which provides that an application for review must be lodged with a registry of the Court within 28 days of the notification of the decision. It is clear that this application was filed more than six years after the decision was made and presumably notified to the Applicant. The explanation for the delay in these proceedings partly arises from efforts by the Applicant to obtain from the Minister a discretionary decision under the provisions of s.417 of the Migration Act.
The first application was made to the Minister on 26 November 1997. The correspondence with the Minister continued until 29 October 1998. On that occasion, the Minister again wrote to the Applicant informing him that he had declined to exercise his power under that section. The Applicant joined a class action involving direct application to the High Court of Australia on 10 September 1998. His involvement with that action ceased 20 June 2003. It was then another year and four or five months before the Applicant filed his application in this Court. The lengthy delay in filing the application in this Court explains the notice of objection to competency filed by the Respondent.
The Respondent points out that a considerable amount of time has passed; certainly way outside the 28 days that is provided by the section. The situation would also apply that unless the Court finds a jurisdictional error in the decision of the Refugee Review Tribunal, the time limit imposed by s.477 is an absolute one, and the Court has no power to vary it in any way.
If, of course, I find that there is a jurisdictional error, then the decision will not be protected by the privative clause provision in s.474 of the Migration Act, and consequently the time limit in s.477 would not apply. In order then to decide upon the competency of the application, it is necessary to consider what is contained in the application and in the decision sought to be reviewed.
The applicant is a citizen of Lebanon. He arrived in Australia on 2 May 1994. He joined the Lebanese Armed Forces in 1984 and was involved in the fighting in Lebanon. He was a strong supporter of General Aoun, and says that in 1988 he was kidnapped and imprisoned by Syrian agents. There he said he was tortured and witnessed the execution of another person. He said that he was able to escape eventually and return to Beirut, where he re-joined the forces of General Aoun. He says that he feared that he would be dealt with by Syrian agents in Lebanon, and that his life and his safety were at risk because of his involvement with General Aoun.
The application for a protection visa was refused by a delegate of the Minister, so the applicant sought a review by the Refugee Review Tribunal. That application was heard by the Tribunal and the applicant gave evidence before the Tribunal. The Applicant also arranged for another person to give evidence on his behalf. The Tribunal considered the evidence and commented that the applicant has provided a very confusing account of the circumstances in which he left Lebanon. The Tribunal said that the Applicant’s evidence was that the only reason he fears persecution in Lebanon is because he was a soldier in General Aoun’s army. At the same time, the Tribunal noted that the independent material before the Tribunal did not support a conclusion that there was a real chance that he would face persecution in Lebanon for this reason.
The Tribunal accepted some of the Applicant’s evidence, but not all of it. On page 78 of the Court Book, the Tribunal said at about point 9:
While I am prepared to accept that the Applicant may have been detained by Syrian forces during the civil war, as he claims, on balance I do not accept that he was arrested for a second time at some point after the end of the war.
The Tribunal went on to say at page 79 at about point 3:
It is my view further that the detail provided by the Applicant of this claimed arrest and release are not credible.
At the end of that rather lengthy paragraph, referring to that incident, the Tribunal says:
In view of the many discrepancies related to this second claimed arrest, and the inherent implausibility of the Applicant’s account of it, I do not accept that it occurred at all.
The Tribunal went on to say in the next paragraph:
I conclude on the balance of the evidence that whatever his previous contact with the Syrian authorities, the Applicant would no longer be of interest to them. I do not accept that the Applicant was ever genuinely suspected of being an Israeli spy. Spying for Israel is a capital offence.
At page 80 of the Court Book, the Tribunal said:
I do not accept that the evidence of the witness corroborates the Applicant’s claims that he is presently of interest to the Syrians. In view of my findings that there is no reason for the Syrians to be interested in locating the Applicant, I am not satisfied that any Syrian patrols which may pass through the Applicant’s village are specifically directed towards locating him.
The Tribunal went on to conclude:
After considering the evidence as a whole, I am not satisfied that the Applicant holds any kind of political or other profile which would put him at risk of future arrest for a Convention reason.
The Tribunal went on to say that it was not satisfied that the Applicant was a Refugee, and it affirmed the decision to refuse to grant a protection visa.
The Applicant filed an amended application on 4 March 2005. That application was prepared with the assistance of another person. It appears that the Applicant was unaware of some matters contained in that document. In the amended application, the Applicant claims that the Refugee Review Tribunal failed to accord the Applicant procedural fairness. The Applicant’s explanation for that was that the Refugee Review Tribunal did not live in the situation in Lebanon that he did, and that the Syrians were still in Lebanon. That, of course, is a factual matter, and factual matters are decisions for the Tribunal and are not reviewable by the Court.
The Applicant also claimed that the Tribunal failed to give him the opportunity to respond to independent material before the Tribunal, which for the first time can be seen in the green Court Book. He said that he would have needed some considerable time to respond to it, and would have needed an adjournment of a month or so. There is no evidence in the transcript of the proceedings. Annexe 2, an affidavit by Stella Koya sworn on 11 April 2005, showed that the Applicant never asked for an adjournment of the Refugee Review Tribunal hearing.
In the second paragraph on the application, the Applicant refers to the fact that the Tribunal failed to understand the actual situation in Lebanon, and the serious risk faced by the interrogation by the Syrian intelligence who dominated the country. That, of course, is a factual matter and factual matters remain the province of the Tribunal to decide, rather than the Court on a judicial review.
In paragraph 3, the Applicant reiterates his claim that he was detained and tortured in Lebanon; again, that is a factual matter.
In paragraph 4, the Applicant claims that a decision by the Tribunal involved jurisdictional error as the Tribunal did not deny his position as an officer in the Lebanese Army, that he was involved in fighting between Aoun forces and Lebanese forces in 1990. I note that according to the transcript, the Applicant did not say that he was an officer in the army; he said that he was an ordinary soldier, just an individual. The matters in paragraph 4 on page 2 involve no more than a request to conduct a merits review of the Tribunal’s decision and that is outside the scope of judicial review.
The application goes on to refer in its grounds to an alleged failure by the Tribunal to present to him the Amnesty International report, and give him the opportunity to comment on it and the information contained in the Green Book. There is no obligation to do so, and indeed, where information is not specifically about the Applicant or another person and is just about a class of persons of which the applicant or another person is a member, s.424A(3) does not impose upon the Tribunal an obligation to make that information available.
In that ground, the Applicant also says that he was misled by the Tribunal. When asked about that he said that what happened was that the Tribunal did not accept him as a refugee. That is not, of course, the meaning of misled that is commonly accepted, it is just, of course, a request for review of a factual finding.
The final sentence in paragraph 1, as it is, on the bottom of page 2 says:
Such is lack of proper assessment, and inability and failure to refer me to psychologists for a proper report.
The Applicant says that he is unaware of that, and that may well have been added in by the person who prepared this document for him. In any event, there is no obligation on the Tribunal to conduct its own inquiries, let alone to refer an applicant to a psychologist to obtain a psychological report.
Ground 2 on page 3 says:
The Tribunal failed to provide a reasonable opportunity to respond to particular questions with needed time. It failed to provide me a reasonable opportunity to respond to material taken by the Tribunal into account in reaching its decision.
As I said, there was no application for an adjournment at the original hearing. There is no evidence that the Tribunal did fail to give the Applicant a reasonable opportunity to respond.
In paragraph 3 on page 3, the Applicant says:
The Tribunal failed to give me a copy of the transcript or hearing tapes.
The Applicant did say today that he had a copy of the hearing tape, but in any event it is not incumbent upon the Tribunal to provide those documents to the Applicant.
Paragraph 4 contains an assertion that the Applicant’s life has been, and continues to be, demonstrably at risk, contrary to the findings made by the Refugee Review Tribunal. The Applicant in paragraph 5 makes a request to the Court to assist him with legal advice, which, of course, the Court cannot give. He also refers to the fact that the Court Book was not received on time as per short minutes of order. I asked the Applicant about it and he said that he received the Court Book about four months ago. To my mind, that is plenty of time.
He finishes by saying:
My application was lodged after 28 days because I was a member of the class action and I am not an educated person who knew to follow up matters.
Once the Applicant ceased to be involved with the class action proceedings, the time limit would run against him in commencing fresh proceedings.
The facts are that the Applicant has not shown any reviewable error.
I have read through the material; there is no failure to provide procedural fairness. There is no evidence of bias, either apprehended or actual bias. There is no indication that the Tribunal did not ask itself the right question, or failed to take into account relevant matters. There is no reviewable error; the application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 26 April 2005
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