SZFDZ v Minister for Immigration
[2005] FMCA 557
•3 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFDZ v MINISTER FOR IMMIGRATION | [2005] FMCA 557 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in assessment of corroborative material – whether Tribunal failed to apply the ‘real chance’ test properly – whether Tribunal required to speculate. |
| Migration Act 1958, ss.54(1), 425(1), 430, 453A and 483A Judiciary Act 1903 Migration Legislation Amendment (Judicial Review) 2001, Schedule 1, Part 2, Item 8(2) and Item 8(2)(b)(ii) Migration Reform Act 1992, s.39 |
| SZCQO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1188 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 Tickner v Chapman (1995) 57 FCR 451 Singh v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 599 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZFDZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3547 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 12 April 2005 |
| Last Submission: | 14 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Solicitors for the Applicant: | Macquarie Lawyers |
| Counsel for the Respondent: | Mr D. Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3547 of 2004
| SZFDZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) made on 10 April 1996 (together with a corrigendum to that decision dated 31 October 1996) which found that the applicant was not a refugee and not entitled to protection as a refugee under the Migration Act 1958 (C’th), varied the decision of a delegate of the respondent to refuse refugee status so that the decision had effect as a decision to refuse to grant the applicant protection visa and affirmed the delegate’s decision to refuse to grant a protection visa to the applicant. The applicant also applied for a domestic protection (temporary) entry permit and the Tribunal decision of 10 April 1996 also affirmed the decision of the delegate not to grant such an entry permit.
The applicant is a citizen of Lebanon who arrived in Australia as a visitor in August 1992. In February 1993 she applied for refugee status and for a Domestic Protection (Temporary) Entry Permit (DPTEP) under the then applicable law. On 5 April 1993 she attended an interview with an officer from the Department and on 28 April 1993 a delegate of the respondent refused to grant her application for refugee status under the law as it stood prior to 1 September 1994. The court has before it an affidavit from the solicitor for the respondent to the effect that she had been informed that the Departmental file relating to the applicant was destroyed on 15 November 2002. The court does not have before it a copy of the applicant’s affidavit for refugee status or any notes or record of interview, a copy of the delegate’s decision or of other information provided by the applicant to the Department or her written submission (apparently to the Tribunal) of 17 May 1993. References to such material are references to the Tribunal’s description of such material in the Tribunal reasons for decision.
It is not disputed that on 31 May 1993 the applicant sought review by the Refugee Status Review Committee of the delegate’s decision to refuse the refugee application although there is no copy of that application before the court. On 1 July 1993 the RSRC ceased to exist. The Refugee Review Tribunal began to review decisions to refuse refugee status. The applicant was informed of this in September 1994. On 5 July 1995 the Tribunal wrote to the applicant advising her that the Tribunal was ready to consider her case and that she should send any documents or written arguments that she wished the Tribunal to consider. On 28 February 1996 the Tribunal wrote to the applicant advising her that the Tribunal had considered all the papers relating to her case but was unable to make a favourable decision on that information alone. It invited her to a hearing on 21 March 1996. The applicant initially declined to attend the hearing (providing a written statement dated 1 March 1996 which is before the Court) then notified the Tribunal by telephone call on 5 March 1996 (which was confirmed on 7 March 1996 in a telephone call from a friend) that she would attend the hearing and then failed to attend the hearing. On 10 April 1996 the Tribunal made the decision in issue before this court. It related to the application for refugee status and also the application for a DPTEP which had been refused by the respondent on 8 November 1995.
The application for review of the Tribunal decision was filed in this court on 3 December 2004. No explanation was provided by the applicant (who is legally represented) prior to the hearing in relation to the delay between the time of the Tribunal’s decision and her application to this court. She was given leave to file an affidavit after the hearing in relation to such delay and each party filed written submissions on this issue. The question of delay is discussed further below.
The Tribunal’s decision
The Tribunal had regard to the changes in the law at relevant times. In reliance on s.39 of the Migration Reform Act 1992 it treated the applicant’s application for refugee status as an application for a protection visa. The Tribunal set out the claims made by the applicant both in writing and before the Department at an interview. It described various communications from the applicant about the Tribunal hearing and noted that she had failed to attend the hearing. It also noted that attempts to contact her after the scheduled hearing had failed. The Tribunal was satisfied that the applicant was afforded the opportunity to attend a hearing as required by s.425(1) of the Migration Act 1958 (C’th) (as in force at the time) and proceeded to review her claims upon the information before it.
The applicant claimed to fear persecution in Lebanon because of her political opinion as a member of the National Liberal Party (NLP) of Lebanon and as a supporter of General Michel Aoun. She also claimed that she wrote and distributed leaflets encouraging workers in Lebanon to oppose the then Lebanese authorities and feared persecution because of this political activity. In a written submission dated 17 May 1993 the applicant claimed that she wrote the leaflets “under the pressure of wartime circumstances to meet whatever were the immediate problems that surrounded us”. She said that she carried out essential and important work as part of her membership duties. She also provided a supporting letter from the NLP which is referred to below.
At the Departmental interview she said that she did not feel she was in danger from Lebanese authorities when she arrived in Australia (in August 1992). However she claimed that since being in Australia she had been told by relatives in Lebanon that Lebanese security officers had been investigating her and in 1993 had been asking about her whereabouts and when she was returning to Lebanon and that she was under investigation by the Lebanese authorities.
In a written statement to the Tribunal dated 1 March 1996, in which the applicant said that she would be terrified to appear before the Tribunal, she claimed that she still received information from relatives “who send me spoken messages that from time to time they are approached by police agents or other authorities as to my whereabouts”.
The Tribunal accepted that the applicant was a national of Lebanon, described her claims and stated that at issue was whether her fears of political persecution were well-founded. It referred to independent country information that the NLP had supported General Aoun in the war of liberation against Syrian forces in 1989 and had maintained support for Aoun as claimed by the applicant and to information about the Maronite Christians in Lebanon. In light of this information the Tribunal indicated that it had sought information as to the then current status of the NLP in Lebanon and whether membership of the NLP and support for Aoun placed Lebanese at risk of persecution. It concluded that information about the NLP dated 1993 and 1995 from the Department of Foreign Affairs and Trade and from the Australian Embassy in Damascus indicated that NLP members and Aoun supporters were not subjected to persecution merely for their political views although in “certain sensitive periods, for instance at the time of national elections, the Lebanese authorities had not tolerated activities perceived to be a threat to national unity and security.” It was said that this included Aoun supporters who openly campaigned by disseminating political materials in defiance of the laws of sedition.
The Tribunal considered the applicant’s claims in relation to her political activities and opinion. It noted that the applicant had given evidence that she wrote and distributed propaganda for the NLP ‘under pressure of wartime circumstances’. It concluded that since the civil war conditions in Lebanon had ended in about 1989 it appeared that her political activities were not significant after that time. It had regard to the fact that she had not specified being involved in acts of sedition or actively involved in an anti-government propaganda campaign during the national elections held in 1992 (the first Parliamentary elections held after the civil war) which was a time at which there was evidence that certain political acts might result in imprisonment for sedition.
The Tribunal regarded the applicant’s uneventful and legal departure from Lebanon in 1992 as a significant indicator that she was not at the time a target of political persecution. The Tribunal noted that the applicant had told the Department that she did not fear persecution for her political opinions when she left Lebanon but that her fears arose after her arrival in Australia when she received messages from her relatives that the authorities had made inquiries as to her whereabouts in 1993 and after. It accepted that after her departure she developed fears because of reports from her family but stated:
The reports that authorities have sought information of her whereabouts are not sufficiently detailed for the Tribunal to conclude that the inquiries relate to her political activities. It regards her belief that she is a target of persecution for being a member of the NLP as unfounded speculation especially as this organisation is an officially recognised party.
The Tribunal went on to find that, although the Syrian forces maintained a presence in Lebanon, it was not satisfied that the Lebanese or Syrian authorities were a threat to the security of the applicant because of her membership of the NLP or her support for General Aoun. It concluded that there was no real chance that she would face persecution for her political opinions in Lebanon. It rejected her claim that she would be subject to persecution for her political opinions by government authorities and found that her opinions in support of General Auon or her membership of the NLP would not place her at a real chance of political persecution in Lebanon. It concluded that she did not have a well-founded fear of persecution for her political opinions in Lebanon.
The Tribunal issued a corrigendum on 31 October 1996 clarifying the fact that the decision to refuse refugee status and the decision in relation to the entry permit application were dealt with by the decision.
This application
The applicant relies on an amended application filed in court. The grounds of the application are as follows:
1. The applicant provided an item of corroborative evidence to the Tribunal, being a letter from the Secretary of the National Liberal Party of Lebanon (‘the NLP’), Commissionery of Australia. The Tribunal fell into jurisdictional error in dealing with the letter.
2. The Tribunal appears to have accepted that the applicant wrote and distributed propaganda for the NLP in wartime circumstances and other sensitive times. The Tribunal failed to consider whether such circumstances might occur again in the future; if so, whether the applicant would recommence writing and distributing propaganda; and if so whether her fear of persecution was well founded in these circumstances. In these circumstances, the Tribunal fell into jurisdictional error.
3. The Tribunal found that the applicant’s belief that she was the target of persecution for being a member of the NLP was ‘unfounded speculation’. The Tribunal fell into jurisdictional error in making this finding.
A preliminary issue in these proceedings is what law the court should apply in dealing with the application before it. The application was filed on 3 December 2004 and is expressed (as is the amended application) to be made under s.39B of the Judiciary Act 1903 (C’th). Counsel for the respondent conceded that, whatever other jurisdiction the court may have to undertake judicial review of the Tribunal’s decision in this case, the court had jurisdiction under s.39B of the Judiciary Act and s.483A of the Migration Act 1958 to entertain this application and that if the applicant could demonstrate jurisdictional error she would be entitled to relief pursuant to s.39B. No issue was taken with the applicable law by counsel for the applicant. In the circumstances of this case, while noting the respondent’s concession that the law provided by the existing Part 8 of the Migration Act 1958 enacted upon the commencement of the Migration Legislation Amendment (Judicial Review) 2001 does not apply (see Schedule 1, Part 2, Item 8(2)), it is not necessary to determine the doubt about the operation of Item 8(2)(b)(ii) referred to by Moore J in SZCQO v MIMIA [2004] FCA 1188 at [9].
Similarly no issue was taken by the applicant with the respondent’s contention that the old Part 8 of the Migration Act does not apply. Argument proceeded on the basis that the applicant was left with s.39B of the Judiciary Act (and s.453A of the Migration Act) as her only avenue of judicial review.
The applicant raises three grounds of review. Her counsel conceded that where an applicant elects not to attend a Tribunal hearing and where most of the written claims and supporting documents supplied by the applicant to the Tribunal no longer exist, it is difficult to persuade a court on a judicial review application that there is jurisdictional error in the Tribunal’s decision. He nonetheless contended that the Tribunal fell into error in the following three respects.
‘Corroborative evidence’ issue
The applicant claimed she was a target of political persecution because of her work in writing and distributing leaflets. It was contended that there was evidence that she was a target of political persecution consisting of her claim in the protection visa application that she was told by relatives in Lebanon that security officers were investigating and asking about her whereabouts in 1993, her statement in the Departmental interview that since being in Australia her relatives had told her she was under investigation by Lebanese authorities and also her claim in the letter to the Tribunal dated 1 March 1996 about spoken messages from her relatives that from time to time they were approached by police agents or other authorities as to her whereabouts.
It was also contended for the applicant that she provided corroborative evidence to support this claim, being a letter from the Secretary of the NLP Commissionery of Australia dated 27/5/1993. The Tribunal described the contents of this letter as follows:
The Secretary states, that through telephone contact with political sources in Lebanon, the Applicant was involved as a “prolific writer of, and contributer (sic) for pamphlets and leaflets on behalf of the National Liberal Party of Lebanon” and opined that “the Party and its members are objects of suspicion and persecution facing the possibility of imprisonment or even death for their activities”. The Secretary also states that “Lebanon is still not a settled place even though the war has ended”.
It was submitted that while the Tribunal did not reject the Secretary’s opinion or the content of the letter, it fell into jurisdictional error because in finding that the applicant’s fear of persecution was unfounded it ignored this letter. It was contended that although the Tribunal referred to the letter in the section of its decision entitled ‘Claims and Evidence’, it made no reference to the letter in the section of its decision entitled ‘Reasons for Decision’ when finding that the applicant’s fear of persecution was unfounded.
Initially counsel for the applicant sought to rely on what was said in Re MIMIA; Ex parte Applicant S20/2002 [2003] HCA 30 per McHugh and Gummow JJ at [49] and also on WAIJ v MIMIA [2004] FCAFC 74 at [26]-[27]. In Applicant S20/2002 at [49] their Honours stated:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s.430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
It was contended that implicit in this statement was an assumption that where a party’s credibility was not weakened in cross-examination in the manner described, it was appropriate or necessary for a decision-maker to have regard to corroborative evidence and if the decision-maker had no regard to the corroborative evidence then it could fall into jurisdictional error. It was submitted that on this basis (and based on what Lee and Moore JJ stated in WAIJ at [26] – [27]) the Tribunal was bound to have regard to the letter from the Secretary of the NLP not just in reaching a conclusion on the applicant’s credibility but also in reaching a conclusion in relation to her claim that her fear of persecution was well founded. It was also suggested that it was open to the court to conclude that while the Tribunal referred to and set out the content of the letter in the part of its decision setting out the claims and evidence it may still be the case that the Tribunal did not in fact have regard to the letter in reaching its conclusions.
However as counsel for the applicant appears to have conceded in oral submissions in response, cases such as Applicant S20 and WAIJ dealt with the rather different situation of the treatment of material corroborative of an applicant’s claims as to what had occurred in the past. In Applicant S20 it was asserted that a jurisdictional error consisting of a want of logic had arisen because it was irrational for the Tribunal to decide that an applicant had lied without, at an earlier stage, weighing alleged corroborative evidence. Their Honours rejected this argument. In WAIJ it was contended that the Tribunal had erred by disregarding material that was corroborative as to whether or not the events that the applicant had complained of had occurred before attempting to reach a conclusion on her credibility.
In contrast in this instance the Tribunal accepted that the events complained of had occurred and that the applicant had engaged in the actions which she claimed to have engaged in and indeed that she had a subjective fear of persecution. The applicant’s credibility was not in issue. Rather, the Tribunal found that her fear was not well-founded. In such circumstances it did not err by disregarding corroborative material or proceed in an illogical manner as contended. Moreover it cannot be said that the Tribunal failed to have regard to the claims made by the applicant or to relevant considerations as discussed in MIMA v Yusuf (2001) 206 CLR 323 and Htun v MIMIA (2001) 194 ALR 244 in failing to refer expressly to the letter in the findings and reasons part of the decision.
The applicant relied on the decision of Sackville J in Singh v MIMA (2001) 194 ALR 599. This decision turned on whether or not there had been compliance by the Minister with the requirement in s.54(1) of the Migration Act to “have regard to all the information in the application” in deciding whether to grant or refuse to grant a visa in circumstances where there was an issue as to whether or not the Minister had had regard to character references provided for the applicant. It was contended that just as s.54(1) required the decision-maker to have a realistic or genuine consideration of material or what Black CJ described as ‘an active intellectual process’ directed at the information (Tickner v Chapman (1995) 57 FCR 451 at 462), similarly in this instance the Tribunal was under an obligation to have regard to the evidence in the letter from the Secretary of the National Liberal Party, Commissionery of Australia. It was submitted that the Tribunal obligation to have regard to such information was not discharged if there was no active intellectual process directed at the information. It was contended that the mere fact that the Tribunal recited the material in the description of the applicant’s claims did not establish that the Tribunal had had regard to the material any more than a mere assertion in general terms that a decision-maker has had regard to a matter necessarily shows that he or she did in fact do so (Singh at [61]). It was contended that it was open to the court to conclude that although there was a reference to the letter in the first part of the Tribunal decision it did not have regard to it when making its findings.
However, just as a mere assertion that a decision-maker has had regard to a matter does not necessarily show that he in fact did so, nor does the mere fact that there is only one reference to the specific material in the early part of the decision of the Tribunal mean that it must be inferred that the material was not considered by the Tribunal as part of the decision-making process.
It is important to consider the manner in which the information was put before the Tribunal (insofar as it is possible to do so on the material before the court) and the manner in which the Tribunal reached its conclusions.
According to the Tribunal, the letter was provided by the applicant as evidence of her membership of the National Liberal Party. Importantly, such membership was accepted by the Tribunal. The letter which was dated 27 May 1993 (some almost three years prior to the Tribunal decision) stated that the applicant was involved as a writer and contributor of pamphlets and leaflets on behalf of the NLP. Again, the Tribunal accepted that the applicant engaged in such activities which, on her evidence, she did ‘under the pressure of wartime circumstances’. On this basis the Tribunal accepted that she had engaged in such activities at least until about 1989. The part of the letter reproduced in the Tribunal reasons for decision does not suggest anything to the contrary so that the Tribunal findings are not inconsistent with this aspect of the letter.
The letter then continued that the Secretary of the Party in the Commissionery of Australia ‘opined’ that “the party and its members are objects of suspicion and persecution facing the possibility of imprisonment or even death for their activities” and that Lebanon was still not settled although the war has ended. The letter was dated
27 May 1993. In light of the Tribunal finding (based on the applicant’s own evidence) that it appeared that her political activities were not significant after 1989 and that she had no fear of persecution at the time of her departure from Lebanon in 1992 this opinion from 1993 is merely a piece of country information before the Tribunal about the then situation in Lebanon for active party members. The weight to be given to particular items of evidence is a matter for the Tribunal. It is notable that the Tribunal in fact addresses the particular issue raised in the opinion of the letter writer (in particular whether membership of the NLP and support for Aoun placed Lebanese at risk of persecution) in addressing more recent country information from independent sources. It found that such recent information indicated that NLP members and Aoun supporters were not subjected to persecution merely for their political views, although noted that in certain sensitive periods, such as at times of national elections, the Lebanese authorities had not tolerated activities which were perceived to be a threat to national unity and security. Again it is notable that the applicant did not claim to have been involved in any such activities during the period of the elections held after 1989 (in 1992). In other words while it does not say so expressly, it is apparent that while the Tribunal accepted that the applicant was a member of the NLP and had engaged in the activities described in the letter it preferred other more recent independent information in preference to the opinion of the letter writer about the situation in Lebanon. Such procedure does not involve jurisdictional error. It is not necessary for the Tribunal to refer to every item of evidence when it makes its decision. In this case I am satisfied that reading the Tribunal decision fairly and as a whole and with an eye not too finely attuned to the perception of error (see MIEA v Wu Shan Liang (1996) 185 CLR 259), given the specific reference to the letter and in the manner in which the Tribunal addressed the particular issues raised by the letter it cannot be said that the Tribunal failed to take into account relevant considerations in the sense of integers of the applicant’s claims or that it in any other way failed to have regard to material in a manner constituting jurisdictional error.
‘Future persecution’ issue
It was contended that the Tribunal appeared to have accepted that the applicant wrote and distributed propaganda for the NLP in wartime circumstances and other sensitive times but failed to consider whether such circumstances might occur again in the future, if so whether the applicant would recommence her activities and if so whether her fear of persecution was well-founded. In such circumstances it was submitted that the Tribunal fell into jurisdictional error in that it failed to properly apply the real chance test.
It was submitted that it was relevant to this ground that the Tribunal did not make any adverse finding against the applicant because she did not claim she was involved in writing and distributing anti-government pamphlets during the national election in Lebanon in 1992 and suggested that this may have been because the applicant appeared to have left Lebanon before or at the time of the national election. This last submission involves a degree of speculation not supported by the Tribunal decision. The evidence as to the applicant’s movements is that she obtained her passport in July 1992 and left Lebanon in August 1992. Country information relied on by the Tribunal described detention of a number of Aounist supporters during July/August 1992 for distribution of seditious pamphlets. The Tribunal noted the absence of any claims by the applicant to have been involved in acts of sedition or an anti-government propaganda campaign during the national elections held in 1992. It regarded her uneventful and legal departure from Lebanon in August 1992 as a significant indicator that she was not ‘at that time’ a target for political persecution. The Tribunal finding that it appeared that the applicant’s political activities were not significant after the civil war conditions ended in about 1989, its reference to the absence of any specific claim by the applicant about involvement in acts of sedition or anti-government propaganda during the 1992 elections and to the fact that she did not fear persecution when she left Lebanon in 1992 addresses her involvement in political activities in 1992.
As to the applicant’s contentions that there was an error in the manner in which the Tribunal dealt with the ‘real chance’ test, it is not contentious that, as Lee and Moore JJ stated in WAIJ at [17] – [18]:
“A fear of persecution is a well-founded fear if it shown by the nature of past events, and/or the prospect of such events may occur in future, that there is a risk that the applicant may suffer persecution if returned to the country of nationality” … “The role of the Tribunal in conducting a review under the Act is to assess whether the material presented indicates that there is a real possibility that if the applicant were returned to the country of nationality events involving the applicant may occur which would constitute persecution of the applicant”.
However in the circumstances of this case I am not persuaded that the Tribunal erred in the manner contended. It was not obliged to consider the possibility of future ‘sensitive’ periods and the other matters contended for by the applicant. What the Tribunal accepted was that the applicant engaged in these activities “under the pressure of wartime circumstances to meet whatever were the immediate problems that surrounded us” as she had claimed. It did not make a finding about other sensitive times as contended. Based on independent information it did not accept that she or was a target of persecution merely for being or a supporter of General Aoun or a member of the NLP (it regarded her belief in this respect as ‘unfounded speculation’ especially as the NLP was an officially recognised party). The Tribunal found that there was no apparent significant political activity by the applicant after 1989. She had no fear of persecution when she left Lebanon. There was no claim by the applicant that she proposed to engage in any political activities in the future. Further, the Tribunal found no Convention nexus between the authorities looking for the applicant (the claimed basis for fear arising) and her political opinion. Critically, on the information before it it could not conclude that the inquiries related to her political activities. In the circumstances of this case the Tribunal considered all that it was required to do in addressing whether there was a real chance of persecution if the applicant returned to Lebanon. It had regard to the applicant’s claims about what had occurred in the past, to country information about the situation in Lebanon and to its lack of satisfaction that there was a Convention reason for the fact that the authorities had sought information as to the applicant’s whereabouts. In these circumstances the conclusion that there was no real chance (that is a chance that was neither remote or groundless) that she would face persecution for her political opinions in Lebanon was open to the Tribunal. It rejected her claims in this respect. The Tribunal considered all that it was required to do to formulate its opinion about whether there was a real chance of future persecution and reaching its conclusion about the well-foundedness of the applicant’s fear of persecution.
‘Well-founded fear’ issue
It was contended for the applicant that she had given evidence on three separate occasions (twice in writing and also in the Departmental interview) that the authorities were looking for her in Lebanon. The Tribunal did not reject this evidence, but found that because her evidence was not sufficiently detailed her belief that she was a target of persecution because she was a member of the NLP was ‘unfounded speculation’. It was submitted that the Tribunal’s finding begged the question of why the authorities were investigating the applicant and asking about her whereabouts and that the Tribunal’s failure to address this question meant that it failed to properly carry out its function giving rise to jurisdictional error. In other words it was said that if the Tribunal did not reject the fact that the authorities were looking for her or the fact that she wrote pamphlets, then proper consideration of her claims required the Tribunal to make a finding as to why the authorities were looking for her (if not in connection with writing and distributing pamphlets).
I am not satisfied that a jurisdictional error is established on this basis. It is for the applicant to put sufficient material before the Tribunal to enable it to be satisfied, in this case, that the authorities were looking for her for a Convention reason or for reasons that raised or brought her circumstances within one of the Convention reasons. The Tribunal finding was that the reports that the authorities had sought information about the applicant’s whereabouts were not sufficiently detailed for it to conclude that the inquiries relate to her political activities. In other words the applicant provided insufficient evidence to satisfy the Tribunal. The applicant had been advised that the Tribunal was unable to make a favourable decision on the information before it in the letter inviting her to the hearings. She chose not to attend. The only additional relevant information she provided was that she still received spoken messages from her relatives that from time to time they were approached by police agents or other authorities as to her whereabouts. It was not necessary for the Tribunal to speculate about reasons for which the authorities might be seeking information about the applicant. Once it had found that it could not be satisfied that the authorities were looking for her for relevant reasons, the Tribunal had discharged its obligation.
It has not been established that there was a jurisdictional error on any of the bases contended for by the applicant. This means that it is not necessary for me to determine whether, even if jurisdictional error was established, relief should be refused as a matter of discretion in particular because of the applicant’s delay in instituting these proceedings. The application must be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 3 May 2005
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