SZFLL v Minister for Immigration - [2006] FMCA 1242

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFLL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1242

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Lebanon – whether the RRT breached s.424A of the Migration Act 1958 (Cth) or overlooked an integer of the applicant’s claims considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.40B, 424A, 477

Minister for Immigration v NAMW [2004] FCAFC 264
NARV v Minister for Immigration (2003) 203 ALR 494
SZEEU v Minister for Immigration [2005] FCAFC 2
VHAJ v Minister for Immigration (2003) 131 FCR 80
VHAP of 2002 v Minister for Immigration [2004] FCAFC 82
WAJW v Minister for Immigration [2004] FCAFC 330

Applicant:

SZFLL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG76 of 2005

Judgment of:

Driver FM

Hearing date:

24 August 2006

Delivered at:

Sydney

Delivered on:

24 August 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr A Cox
Phillips Fox

ORDERS

The Court directs that the title of the first respondent be amended to The Minister for Immigration and Multicultural Affairs.
The Refugee Review Tribunal be joined as the second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG76 of 2005

SZFLL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 4 November 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Lebanon and had made claims of political persecution. I adopt as background for the purposes of this judgment paragraphs 4 through to 12 of the Minister’s outline of written submissions filed on 17 August 2006:
The applicant is a male citizen of Lebanon. He arrived in Australia on 11 August 2002 and applied for a protection (class XA) visa on 9 September 2002.[1] The application was refused on 19 December 2002.[2] The applicant applied to the RRT for review of the original decision on 5 February 2003.[3] The applicant gave oral evidence before the RRT on 27 August 2003. The RRT handed down its decisions on 4 November 2003.
[1] court book, page 1
[2] court book, page 32
[3] court book, page 44
The applicant's claims
The applicant's claims in the protection visa application were set out briefly in answer to questions 40 to 44.[4] They revolve around the applicant's membership and activities as part of the student wing of the Lebanese Forces (LF), which the applicant claims resulted in several arrests by military intelligence.
[4] court book, pages 17 -20
The decision of the RRT
The RRT affirmed the decision under review refusing to grant the applicant a protection visa. The RRT accepted that the applicant was a citizen of Lebanon and assessed his claims against that country. The applicant claimed that he feared persecution from the Lebanese government because of his involvement with the Lebanese Forces (LF) students.
The applicant's claims were contained in his initial application and the oral evidence he gave to the RRT. They were summarised at pages 4 to 10 of the RRT decision[5].
The RRT decision was based on a finding that the applicant's claims were not credible because of internal inconsistencies within his claims and inconsistencies with country information.
a)The RRT found that the applicant had fabricated his evidence with respect to his educational history, finding that he might have been enrolled at HSU for the 1999-2000 academic year in marketing, but that he was not studying there for three years, and never actually undertook any studies towards a marketing degree.[6]
The RRT accepted, on the basis of his membership card, that the applicant was a member of LF, but not LF students.
The RRT did not accept the applicant's claims that he had been arrested and detained on four occasions because of his participation in demonstrations.[7]
With respect to his claim regarding other occasions when he was questioned about weapons, the RRT found that he was not questioned because of his political opinion or any other Convention reason. It also found that, in any event, the applicant did not claim to have suffered harm, let alone serious harm, as a consequence of being questioned by the authorities. It found that his experiences did not amount to persecution. [8]
The RRT made findings on whether the applicant would be persecuted for reason of his membership of LF if he returned to Lebanon and concluded that the country information suggested that rank and file members of LF did not face a real chance of serious harassment, unless they were involved in activities that might lead to a security threat.[9]
[5] court book, pages 82-88
[6] court book, pages 97-98
[7] court book, pages 99-103
[8] court book, page 103
[9] court book, page 104
These proceedings began with a judicial review application filed on 11 January 2005. On 24 January 2005 a registrar made orders for the progress of this matter towards a hearing. Among other things, the Registrar ordered the applicant to file and serve an amended application with particulars. The order was not complied with. The applicant explained that he had placed his affairs in the hands of a person he described as a solicitor but who I believe was a registered migration agent. That person was Paulina Domgfrga who ran a business called Ardem International. The applicant told me that he paid this person $10,000 and last saw her about a year ago. Enquiries made by computer by my associate during the course of the hearing disclosed that Ms Domgfrga was formerly a registered migration agent but her registration was cancelled on 10 October 2005. It also appears that Ardem International was a company which has been wound up by court order. In the circumstances, I accept that the applicant had, through no fault of his own, been unable to comply with the court’s order for an amended application.
The judicial review application sets out a single ground of review; that is that the RRT erred in a manner amounting to jurisdictional error in that it failed to consider every integer of the applicant’s claim of a well‑founded fear of persecution. The particulars are that the RRT failed to consider the claim of the applicant to a well-founded fear of persecution, first from the Syrian intelligence forces operating within Lebanon and, secondly, based on the inability of the Lebanese government to protect the applicant from serious harm at the hands of or at the instigation of either Muslim paramilitary groups or Muslim officials presently part of the Lebanese government.
The Minister objects to the competency of the judicial review application. The Minister relies upon an amended notice of objection to competency filed on 17 February 2005. That notice is supported by an affidavit by Adele Alex filed on 19 January 2005. The Minister’s objection is based on the proposition that the judicial review application is out of time. However, at the time this application was filed s.477(1A) of the Migration Act 1958 (Cth) (“the Migration Act”), on which the Minister relies, depended for its operation on the decision under review being free from jurisdictional error. It follows that the Court cannot resolve the objection to competency without resolving the challenge to the RRT decision based on jurisdictional error.
I received as evidence the court book filed on 10 February 2005. I also received, over the objections of Mr Cox, for the Minister, a transcript of the RRT hearing which was tendered as an exhibit by the applicant during his oral submissions today. Mr Cox objected to the tender on the basis that he had not had the opportunity to verify the accuracy of the transcript and it was not apparent on the face of the transcript itself whether it was an accurate record of the hearing. On my perusal of the transcript I satisfied myself that the transcript appeared to have been professionally prepared and appeared to be a plausibly accurate record of the hearing. I ruled that I would receive the transcript as evidence provided that it did not conflict with the evidence in the court book. In the event of a conflict, I would give the evidence in the transcript no weight.
The applicant’s oral submissions were principally directed to explaining his protection visa claims to me by reference in particular to the transcript and seeking to deal with the Minister’s assertion that the applicant had adopted his protection visa claims at the RRT hearing. That latter issue relates to the question arising from the Minister’s written submissions whether any breach of s.424A of the Migration Act is involved in this case. The applicant in his oral submissions asserted that s.424A was breached because he was not given the opportunity to examine and comment upon independent country information relied upon by the presiding member and obtained from the internet.
It is apparent from the transcript that there was discussion about that information at the hearing. It is also apparent from the court book that that information was not disclosed in writing. However, I accept the Minister’s submission that it did not need to be. In that regard I agree with and adopt for the purposes of this judgment paragraph 21 of the Minister’s written submissions:
… in relation to s.424A(3)(a), it is settled law that the RRT's reliance on country information does not raise any obligations under section 424A(3)(a). In WAJW v Minister for Immigration [2004] FCAFC 330 the Court at [44] stated:
This submission by the appellant is dependent on whether s 424A(3) contains two criteria. A recent decision of the Full Court, Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 (“NAMW”), delivered on 23 September 2004, held that the only criterion is that the information is not specifically about the applicant or another person, and that the reference in s 424A(3)(a) to the class of persons is a provision designed to underline the specificity required by precluding an argument that reference to a class could be taken as a reference to all individuals falling within it, including an applicant. That view was reached, albeit on different foundations, by Beaumont J at [70] and Merkel and Hely JJ at [138]. In VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 80 (“VHAJ”), delivered on 15 August 2003, Moore J and Kenny J respectively reached a conclusion to the contrary by adopting a ‘two criteria’ approach (at [25] – [27] and at [46] – [48]), with Downes J expressing a different opinion at [73] – [75]. In NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 at [30], Ryan and Finkelstein JJ expressed views to the same effect as those by the majority in VHAJ on the issue. The alternative interpretation was adopted in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [14] per Gyles and Conti JJ (with whom Allsop J agreed). See NAMW at 9, at [126] records the following
I disagree with paragraphs 19 and 20 of the Minister’s submissions in relation to the operation of s.424(3)(b) of the Migration Act. If the RRT decision depended in whole or in part upon information derived from the applicant’s protection visa application, then the mere adoption of that information by the applicant at the RRT hearing, which is verified by the transcript on page 4, would not convert that information to information presented by the applicant to the RRT for the purposes of the review; see SZEEU v Minister for Immigration [2005] FCAFC 2 at [20] and [157].
However, on my reading of the RRT decision the findings and reasons of the presiding member in affirming the decision of the delegate did not depend in whole or in part on information derived from the applicant’s protection visa application. Rather, the adverse credibility findings made by the presiding member were based upon other information provided by the applicant at the RRT hearing. In respect of that information the exception in s.424(3)(b) applies.
The applicant’s contention that the RRT overlooked an element or integer of his claims is arguable, but fails. The RRT’s obligation is to consider an applicant’s claims as put. The applicant’s claims in this case were of a fear of the Lebanese authorities. The applicant was not able to take me to any written or oral claims he put in the terms he set out in the particulars to the ground of review. It is true that as a matter of common knowledge, Syrian influence in Lebanon at the time of the applicant’s protection visa application and the RRT hearing was significant. It is also true that at the time of the RRT hearing, as now, Muslim organisations including Hezbollah have significant influence within Lebanon. In considering a fear of harm at the hands of Lebanese authorities, decision makers would probably need to consider the influence that other countries or non‑government agencies have on those authorities in Lebanon.
However, the applicant’s problem was that he was in essential respects not believed. Because the applicant was not believed, the presiding member was not required to pursue the subtle questions of influence on the relevant Lebanese authorities that might otherwise have called for consideration. The applicant’s claims were considered in the terms that they were put and, in substance, rejected. The RRT did not err by overlooking any element or integer of the applicant’s claims.
I see no other jurisdictional error in the decision of the RRT. It follows that the RRT decision is a privative clause decision and the application must be dismissed.
That said, there are humanitarian considerations in this case which are beyond the scope of this proceeding. The notorious present state of affairs in Lebanon may well warrant the applicant requesting the Minister to exercise her power to intervene under s.417 of the Migration Act or her power under s.40B of the Migration Act to permit him to make a fresh protection visa application. That is a matter upon which he would be wise to take advice. If the request is made to the Minister, it is entirely a matter for her whether she considers it and what decision she makes on it.
I will order that the application be dismissed. I will direct that the name of the Minister be amended to the Minister for Immigration and Multicultural Affairs. I will further direct that the Refugee Review Tribunal be joined as the second respondent to the application.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,800. I accept that that is a fair party and party assessment. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $3,800.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 4 September 2006