SZFMV v Minister for Immigration

Case •

[2007] FMCA 1586

•

3 October 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFMV v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1586
MIGRATION – Real chance test – well-founded fear – findings of fact – not so unreasonable that decision is abuse of power – Wednesbury unreasonableness not established.
Migration Act 1958 (Cth), ss.91R, 474

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Puerta v Minister for Immigration and Multicultural Affairs [2001] FCA 309

Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1

Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223
Applicant:           SZFMV
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 881 of 2007
Judgment of: Turner FM
Hearing date: 17 September 2007
Date of last submission: 17 September 2007
Delivered at: Sydney
Delivered on: 3 October 2007

REPRESENTATION

Counsel for the Applicant: Mr  J.R Young
Solicitors for the Applicant: Mr E. Georges of Simon Diab & Associates
Counsel for the Respondents: Mr S. Lloyd
Solicitors for the Respondents: Mr B. Cramer

ORDERS

  1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 881 of 2007

SZFMV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application filed on 15 March 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 5 February 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

Background

  1. On 30 April 2001 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to fear persecution by the Lebanese government and Syrian forces in Lebanon because of his past involvement in the Lebanese Forces Military Security Apparatus and the Lebanese Forces political party.

  2. This application was refused by a delegate of the first respondent on 30 May 2001 (CB 51) and by the Tribunal on review on 7 November 2002 (CB 81). An application for judicial review was subsequently filed with this Court, and on 7 August 2007 Emmett FM remitted the matter to the Tribunal to be determined according to law (CB 102). By decision signed on 5 February 2007, the second Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

  3. The matter is now before this Court pursuant to an application for judicial review filed on 15 March 2007.

Issues for determination

  1. The issues before the Court are:

    ·Whether there is a real chance of the applicant suffering serious harm if he returns to Lebanon;

    ·Whether the applicant has a well-founded fear of persecution for a Convention reason if he returns to Lebanon;

    ·Whether the real-chance test was applied correctly in determining if the applicant has a well-founded fear of persecution for a Convention reason.

The application

  1. In his application filed on 15 March 2007, the applicant set out the following grounds:

    (1)The Second Respondent made a jurisdictional error by misconstruing the meaning of “well-founded fear” and “real chance” under the 1951 Convention relating to the Status of Refugees (“Refugees Convention”) as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Protocol).

    (a)The applicant claimed to have a well-founded fear of persecution from Hezbollah and the Security Forces for a Convention reason being membership of a particular social group, namely, the Lebanese Forces, and political opinion.

    (b)The test for determining whether a person has a “well- founded fear” of persecution under the Refugees Convention is whether they have a genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

    (c)The Second Respondent accepted that if the applicant were to again become politically active with the Lebanese Forces upon his return to Lebanon, he may well become involved with activities where occasional injuries or even death might occur. However, the Second Respondent held that the chance of the applicant suffering serious harm in such a situation would not amount to a real chance. This is a misconstruction of the meaning of “well-founded fear” and “real chance” and thus amounts to a jurisdictional error on the part of the Second Respondent.

    (d)The Second Respondent made a jurisdictional error by misinterpreting Section 91R of the Migration Act 1958. Section 91R(2)(a) states that a threat to the person’s life or liberty amounts to serious harm. The Second Respondent made a jurisdictional error in that even though it found that if the applicant were to again become politically active with the Lebanese Forces upon his return to Lebanon, he may well become involved in activities where occasional injuries or even death might occur, it concluded that the chance of the applicant suffering serious harm in such a situation would not be such as to amount to a real chance.

Findings of the Court in relation to the grounds in the application

  1. The application alleges that the Tribunal erred in considering whether the applicant had a “well-founded fear” and a “real chance” of persecution for a Convention reason.

  2. Ground 1(a) states that the applicant has a well-founded fear of persecution from Hezbollah and the Security forces by reason of membership of a particular social group, namely, the Lebanese Forces ,and for his political opinion. The ground therefore seeks a review of the merits, which is not available. The Tribunal set out its reasons for concluding that there was not a real chance of the applicant facing serious harm if he were to return to Lebanon for reason of his membership of the Lebanese Forces, his political opinion, his religion, or for any other Convention reason (Decision p.15.8 – 16.2). Those findings of fact were properly open to the Tribunal on the material before it and are not subject to review. The findings were not unreasonable and involve no error of law.

  3. Ground 1(b) sets out the test proposed by the applicant of whether a person has a well-founded fear of persecution, being “whether they have a genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason.” The Court agrees with the statement by the Tribunal on page 3 of its decision that an applicant’s fear of persecution must be well-founded, in that, they have a genuine fear founded upon a real chance of persecution for a Convention reason. That is the test the Tribunal applied (Decision p.16.2). This ground shows no error. It is rejected.

  4. Ground 1(c) seeks to challenge the finding of fact by the Tribunal that the chance of the applicant suffering serious harm would not amount to a real chance. The Tribunal set out its reasons for making that finding (Decision page 15.7 – 16.2). This finding of fact was properly open to the Tribunal on the material before it, and is not subject to review. The finding was not unreasonable and does not involve an error of law. This ground is rejected.

  5. Ground 1(d) alleges that the Tribunal make a jurisdictional error by making a finding of fact that there was not a real chance of the applicant suffering serious harm. That finding of fact was properly open to the Tribunal on the material before it and is not subject to review. The finding was not unreasonable and does not involve an error of law. This ground is rejected

  6. The applicant’s written submissions commence by pointing out the poor numbering of pages in the Court Book.

    Paragraph 11 contains a complaint that the Tribunal did not accept that the applicant would be targeted by Lebanese security forces if he returns to Lebanon. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. That finding of fact was properly open to the Tribunal and is not able to be challenged.

  7. In paragraphs 12, 13, 14 and 15 the applicant complains about the finding of the Tribunal that there was not a real chance that the applicant would suffer harm. That finding of fact was properly open to the Tribunal and is not able to be challenged.

  8. It was argued for the applicant that as the Tribunal found that if the applicant returns to Lebanon “he may very well become involved in activities where occasional injuries or even death might occur…”, it was not open to the Tribunal to find that “the chance of the applicant suffering serious harm in such a situation, given the sporadic nature of such conflict, would not be such as to amount to a real chance.” It is said that it was not open to the Tribunal to reach that conclusion unless one of the factors set out in Puerta v Minister for Immigration and Multicultural Affairs [2001] FCA 309 at [11] was present, namely “no real basis in substance for the applicant’s fear, if it is remote or far-fetched”. That submission is not accepted. What the Federal Court decided in Puerta is that

    If there is no real chance that the applicant will be persecuted, or there is no real basis in substance for the applicant’s fear, if it is remote or far-fetched then the fear is not well founded.

    The question of whether there is no real basis in substance for the applicant’s fear, or whether it is remote or far fetched, are expressed as alternative questions to whether there is a real chance; they are all tests of whether a fear is well-founded: Puerta at [9] and [11].

  9. The Tribunal set out the correct test of whether a fear is well founded (at CB 104.8) and whether there is a real chance. The same test is quoted in Puerta at [6]. The Tribunal considered the question and decided for the reason given that the chance does not amount to a real chance. No error of law occurred. The Tribunal did not misconceive the test.

  10. In paragraph 16 the applicant submits that the Tribunal should have found that Australia owed protection obligations to the applicant. This is an attempt to review the findings of fact by the Tribunal that were properly open to it. Findings of fact are a matter for the Tribunal, which can accept, reject or give such weight to the evidence as it thinks appropriate in all the circumstances: Lee (ante). Those findings are not able to be challenged. This claim is rejected.

  11. In paragraph 17 the applicant asserts that because the Tribunal did not decide that there was a real chance that the applicant would suffer serious harm if he returns to Lebanon, and did not find that he had a well-founded fear of persecution, that there was jurisdictional error. These findings of fact by the Tribunal were properly open to it on the material before it. As stated in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:

    The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

    The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

    There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.

  12. The Court finds that the decision of the Tribunal, and the findings of fact on which it is based, are not so unreasonable that no reasonable repository of the power could have taken the decision. The decision was properly open to the Tribunal. This claim is rejected.

Conclusion

  1. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

  2. Accordingly, the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate: Mary Giang

Date: 18 September 2007

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