SZFMW v Minister for Immigration - [2006] FMCA 768

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFMW v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 768

MIGRATION – RRT decision – Lebanese Maronite former army member – claimed persecution in course of army service – Tribunal found no prospect of future mistreatment – no material jurisdictional error established.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 424A(1), 474(1), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965

Applicant:

SZFMW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG133 of 2005

Judgment of:

Smith FM

Hearing date:

4 May 2006

Delivered at:

Sydney

Delivered on:

4 May 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
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

SYG133 of 2005

SZFMW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 17 January 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 November 2003 and handed down on 11 December 2003. The Tribunal affirmed the decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are the same as those of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claim should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in January 2003. It seems that he had relations in Australia, and had made an earlier visit in early 2000. An application for a protection visa was lodged on his behalf on 21 February 2003 by a migration agent.
In answer to question asking why he was seeking protection in Australia so he did not have to return to his country of nationality, Lebanon, his application said: “please see statement attached”. The statement was in the English language, and occupied some two pages. It has what appears to be the applicant’s signature on both pages. This signature is curiously written in Roman letters with a crossing out. There was no indication given to the Department as to how the statement had been prepared and verified.
The statement said that the applicant was a Christian of the Maronite denomination, who had enlisted in the Lebanese army voluntarily for a number of years before coming to Australia. It referred to a series of incidents in the course of his service, in which he claimed that he had suffered ill‑treatment by reason of his religion and perceived connection with an organisation referred to as LF, which was a Christian militia group which had previously operated at a time of civil war in Lebanon. The application was accompanied by documents confirming the applicant’s service in the Lebanese army.
A delegate refused the application on 27 March 2003, and a copy of his decision and reasons was sent to the applicant and his agent. It is unnecessary for me to analyse the reasoning followed by the delegate.
The applicant was assisted by the same agent to apply for a review by the Tribunal on 8 April 2003. He requested a hearing, but did not submit any further documentary support for his claims. The applicant attended a hearing on 11 November 2003, accompanied by his brother and sister‑in‑law, and the Tribunal heard evidence from all three.
Although a document recently filed by the applicant refers to the proceedings at the hearing, and the applicant has made some assertions about what happened in the course of his oral submissions today, no transcript of the hearing has been tendered in evidence. This omission occurred notwithstanding that the original judicial review application was brought by a solicitor on behalf of the applicant, and the applicant was represented by that solicitor until a notice of ceasing to act was filed on 20 April 2006. Directions given at the first court date on 11 February 2005 included a direction that:
2.The applicant file and serve any affidavit containing additional evidence relied upon, including transcript of a tribunal hearing, by 22 April 2005.
The applicant was also put on notice before today’s hearing of the possible relevance of a transcript, by the first respondent’s written submissions which indicated that she would rely on the absence of a transcript in answer to some of the contentions now made by the applicant.
In these circumstances, I am not prepared to assume nor find that anything happened at the hearing which is not referred to by the Tribunal in the course of its statement of reasons. There is no evidence before me to indicate that what the Tribunal said happened at the hearing did not happen.
In its carefully written statement of reasons, the Tribunal referred to the documentary evidence before it, and noted that the applicant’s “oral evidence was broadly consistent with the claims in his written statement, except for one matter which is discussed below”.
The Tribunal clarified that the applicant’s service in the Lebanese Army started in January 1993 and continued until he was demobilised at his own request in October 2002. His service was interrupted by three months leave to travel to Australia between February and May 2000.
The applicant told the Tribunal about several problems which occurred during the years of his service. He said he was “accused of being a LF supporter”. He referred to an imprisonment for 15 days. At one time, he was “involved in a dispute over provisioning”, and was harassed by a senior officer who “wanted him to do things that were illegal”. He told the Tribunal that “there were other occasions when he was punished”. For example, he was imprisoned for 10 days because his hair was too long. He claimed that he had been forbidden to attend church, and had been asked to collect information about political activities of people from his village, which he refused.
The Tribunal’s statement of reasons contained the following description of what the applicant said happened after his return from his visit to Australia in 2000:
He said that he was given three months’ leave to travel to Australia between February and May 2000 and when he returned he was court‑martialled on charges of being an Israeli agent, being a member of the LF, and taking information to Australia. He was sentenced to sixty days’ imprisonment. I asked the applicant why he had not mentioned this incident in his written statement, where he had claimed that he was detained for seven days and fined on his return from Australia. He said that his adviser had told him to mention it at the interview. I told the applicant I found it strange that his adviser would have advised him not to mention in his statement the longest period of imprisonment he claimed to have experienced, or the fact that he was court‑martialled on such a serious charge. He replied that probably it had slipped out of his adviser’s mind, and when the applicant noticed that it was not in the statement the adviser told him that he could mention it at the hearing. Later in the hearing when I asked the applicant about this again, he said that he had been through such a hard time, and he could not tell his story to just anyone; his adviser told him to mention this incident at the interview. I put to the applicant that a sentence of sixty days seemed surprisingly light if he had been found guilty of being an agent. He said that his cousin the colonel had intervened to reduce the sentence.
The applicant told the Tribunal that he believed that generally “he was subjected to harsher than usual treatment in the LAF [Lebanese Armed Forces] because he is a Christian”. He told the Tribunal that he thought that if he returned to Lebanon he would be called up as a reservist, and be discriminated against as a Christian by being sent to the “front line” if a war breaks out.
The Tribunal referred to evidence given by the applicant’s brother and statements made to it by his sister‑in‑law. It then examined independent country information concerning the treatment of former members of the “LF [the Christian militia]” in the early 1990s and following.
The Tribunal concluded:
It seems that the situation has improved to some extent since 1998. Routine harassment of large members of LF members has largely ceased, as have mass arrests in connection with alleged security incidents. However, members and supporters continue to be detained and arrested at, or following, demonstrations and public rallies for the LF.
Under the heading “Findings and Reasons”, the Tribunal, in my opinion accurately, summarised the applicant’s claims:
The applicant claims that he will be given a “hard time” if he returns to Lebanon, essentially because, as a Maronite Christian from a certain town, he is suspected of being a member or supporter of the LF, even though he has never had any involvement with the LF. He claims that during his ten years of army service he was harassed and discriminated against because of his religion and imputed political opinion. Further, the applicant claims that in the event of a future war, he will be called on to fight as an army reservist. He does not want to hurt anyone.
I accept that the applicant served in the LAF for almost ten years, between January 1993 and October 2002, and that he is eligible for call up as a reservist.
The Tribunal dealt with each aspect of these claims, in reasoning which is rational and careful. Although its paragraphing leaves something to be desired, in my opinion it is possible to distil the elements of the Tribunal’s reasoning.
The Tribunal first rejected the applicant’s claim to fear being called up as an army reservist for several reasons, including that that fear would not show Convention persecution, and that such a call up was, in any event, “speculative, remote and insubstantial”.
The Tribunal then addressed the applicant’s claimed history of harassment. It said:
I accept that the applicant experienced difficulties during his ten years of military service. However, I consider that he has exaggerated the extent of these difficulties, and that his evidence about the reasons for problems he experienced with his senior officers is not entirely reliable.
It said that it was not satisfied that the applicant was “targeted for harassment essentially or significantly for this reason”, being his Christian religion and being part of a minority group of Christian army members.
It also addressed another element of the Convention definition as read with s.91R of the Migration Act. It said:
In addition, I am not satisfied on the basis of the applicant’s evidence, that the mistreatment to which he was subjected represents harm of sufficient seriousness as to constitute persecution.
It explained that finding by reference to various incidents of mistreatment which it accepted to have occurred. These included all the complaints made by the applicant, except the complaint which the Tribunal understood him to have made at the hearing for the first time, to have been “sentenced to sixty days’ imprisonment”.
The Tribunal understood this claim to have been that the applicant had been sentenced and served that period of imprisonment. I consider that it was open to it on the evidence given by the applicant to arrive at that interpretation. In relation to this claim, it said:
I do not accept the applicant’s claim, raised for the first time at the hearing, that on returning from Australia he was court‑martialled on charges that included being an Israeli agent, and imprisoned for sixty days. In his written statement the applicant claimed to have been imprisoned for seven days at this time, and did not mention a court‑martial or the serious charges he claimed at the hearing to have faced. I do not accept the applicant’s various explanations for his failure to mention, in his statement, what would have been the most lengthy period of imprisonment to which he was subjected, as well as the most serious incident of victimisation involving the concoction of extremely serious charges against him. Nor do I accept that, if the applicant had been court‑martialled and found guilty of these charges, the sentence imposed would have been so light, notwithstanding intervention by the applicant’s relative, a colonel. If this incident is rejected, then I cannot be satisfied, based on the other matters described by the applicant, that he was singled out for harsher than usual military discipline for reason of his religion.
It will be necessary for me below to return to this element in the Tribunal’s reasoning, both in relation to a complaint made by the applicant and also an issue raised by the Minister’s counsel.
The Tribunal then addressed all the applicant’s claims of mistreatment in the army on an alternative basis. It said:
In any event, even if I am wrong in relation to these findings, I am satisfied that given that the applicant has now been discharged from the LAF, there is no prospect that this mistreatment would continue if he were to return to Lebanon. I do not accept that the applicant’s evidence that his relative the colonel advised him to leave Lebanon once he was demobilised. There is no sensible reason arising from the evidence before me to suggest that the applicant would be at risk of any continuing harm or human rights violations arising from his military service once that service had ended. Whatever ill treatment he may have encountered during that period, I am satisfied that there is no real chance that it would continue in the future.
The Tribunal then addressed the applicant’s claim that he might be persecuted “as a suspected LF supporter” notwithstanding that he had no connection to the LF. It rejected that claim for reasons which are rational, and said:
I do not accept that a person such as the applicant, with no involvement in LF activities, faces a real chance of arrest, detention or harassment, or other serious mistreatment amounting to persecution, merely because he comes from a village with a large LF membership.
The Tribunal then recorded a conclusion addressing all the applicant’s claims at their broadest:
I accept that many Christians in Lebanon feel generally disgruntled about the political and military situation, as indicated by the applicant and his brother and sister‑in‑law. In particular, I accept that they feel aggrieved by the presence of Syrian troops in Lebanon and the influence that Syria wields in their country. There is no evidence to suggest, however, and I am not satisfied, that Christians in Lebanon, as a group, are subjected to discrimination or harassment that constitutes persecution. While I accept that the applicant may have experienced discrimination and harassment during his ten years’ army service, I find that there is no prospect of this continuing now that he has left the army. I find that the applicant has no profile as a supporter of the LF that would give rise to a well founded fear of persecution. I find that the applicant’s concern that he may be called upon as an army reservist does not give rise to a well founded fear of persecution under the Convention.
I am not satisfied, based on the evidence before me in this case, that the applicant has a well founded fear of persecution in Lebanon for the reasons he has claimed.
The applicant’s original application filed by his solicitors contained three grounds of review. These alleged that the Tribunal made jurisdictional errors “by failing to apply the Refugee Convention”, “by misdirecting itself as to the nature of persecution under the Convention” and by making “an error of law in its construction of Australia’s protection obligation under the Convention and Sections 36(2) and 65(1) of the Migration Act 1958”. No particulars of these contentions were contained in the application, nor have any been provided subsequently by way of amended application or written submission. Nor, understandably, has the applicant, who attended today assisted only by an unqualified helper, been able to make legal submissions addressing these contentions. I can find no substance in any of them.
The applicant on 19 April 2006, apparently acting for himself, filed a document headed “Affidavit” which essentially contains an argument raising two specific contentions.
The first contention is that the applicant’s original migration agent “did not provide an accurate translation of my documents”. The applicant attached to his affidavit a handwritten Arabic document which he claimed had been given to his original agent for translation. He claimed that the statement attached to the visa application had derived from that Arabic statement, and that the statement was deficient as a translation. In particular, he claimed that the statement prepared by the agent was deficient where it said:
I was in Australia before two years. When I was returned back to Lebanon I was detained and interrogated by L. Colonel [name]. I was detained for 7 days and paid L.L. 300,000.
The applicant presented to the Court and to the Minister at the commencement of today’s hearing a four‑page document signed by Mr Toufic Laba Sarkis, JP, which states:
This is a translation of the Statement appearing on pages 27 and 28 of the green book written in Arabic by the applicant and translated into the English language by Australian Immigration Information Centre.
I think what is intended to be said by Mr Laba Sarkis is that it is a translation of the Arabic document presented to the Court by the applicant now, and which undoubtedly was not presented to the Department nor the Tribunal. The Minister has not been able to examine the accuracy of the asserted translation from the Arabic document, since no notice of the intention to tender it was given. However, I allowed both statements to be received into evidence, subject to my further consideration of their relevance and weight.
The applicant’s argument about the imperfect translation by the original agent is that the agent should have presented as a correct translation of the relevant part of the Arabic statement:
I was in Australia two years ago and when I returned to Lebanon I was put in jail, then interrogated by Commander [name] and was put in jail seven days and paid 300,000 Lira in lieu of 60 days jail.
I have concluded that it is unnecessary for me to arrive at a finding of fact as to whether indeed exhibit A is or is not a correct translation of the Arabic document attached to the applicant’s “Affidavit”, nor whether the Arabic document was in fact given to the applicant’s original agent, nor whether in fact the agent did not follow his instructions when preparing the English statement which was attached to the visa application.

One reason for this conclusion is that I accept the submissions made by counsel for the Minister that, even assuming the factual premises of the applicant’s argument, there would not have been a significant inconsistency between the two English statements. The asserted error of translation by the agent does not appear to me to have been capable of materially affecting the relevant conclusions of the Tribunal.
Moreover, the clear answer to the applicant’s argument is that no jurisdictional error affecting the Tribunal’s decision can be found by reason of the facts contended by the applicant. It is conceded by the applicant that the Arabic document and Mr Laba Sarkis’ interpretation never reached the Tribunal. There is also no evidence before me that anything was ever said to the Tribunal by the applicant which should have caused it to doubt that the English statement attached to the visa application accurately represented the instructions given by the applicant to his agent. The Tribunal’s account of its questioning of the applicant about that statement, extracted above at [15], contains no such suggestion. Indeed, the applicant’s response to the Tribunal to its suggestion of recent invention, while it blamed the adviser, was that the adviser had told the applicant not to mention the sentence of imprisonment. This is not what the applicant is now contending to the Court.
In my opinion, the applicant’s arguments concerning this alleged error of translation do not establish any jurisdictional error vitiating the Tribunal’s decision.
The second contention raised by the applicant’s “Affidavit” is that:
9.In the Record of Interview audio tape the Arabic interpreter admitted to Presiding Member that she could not translate accurately the positions and rank in the Lebanese Army and the Tribunal allowed the hearing to continue and the translation prejudiced the applicant.
10.The first Migration Agent as well as the Refugee Review Tribunal interpreter were not competent and failed to properly translate my evidence. I strongly feel that I was denied procedural fairness when my case was not properly and accurately put to the Department and heard by the Refugee Review Tribunal member.
The contention that there was a failure of interpretation at the Tribunal hearing is one which has not been given a factual foundation which allows me to accept it. As I have indicated above, the applicant has been on notice for many months that the Court would expect any evidence as to what happened at the Tribunal hearing to be provided by way of a verified transcript. That has not occurred. The absence of that critical evidence was drawn to the applicant’s attention in the respondent’s written submissions, and the applicant has not attempted to rectify it in recent days. It is necessary for me to decide this matter on the evidence presented to the Court. On that evidence the contention must fail.
I also have difficulty seeing how any errors in relation to accurate translation of the “positions and rank” in the army would have made a material difference to the Tribunal’s assessment of the evidence, particularly without being taken to the relevant passages.
Taking into account all the documents which have been presented by the applicant and his oral submissions, I do not think that he has made out any jurisdictional error.
Before completing my judgment I should, however, address a submission made by counsel for the Minister raising whether a breach of the Tribunal’s obligations under s.424A(1) of the Migration Act could be identified from the Tribunal’s findings on the applicant’s claims concerning his treatment on return from Australia in 2000. This reference occurs in the passage set out above at [26], in which the Tribunal drew an adverse conclusion from the absence of reference in the applicant’s written statement accompanying the visa application to his being imprisoned for 60 days.
Counsel for the Minister, in my opinion correctly, accepted that upon the opinion of Allsop J which received approval in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”), such a conclusion might reveal the use of “prior information” which would be required to be the subject of a written notice or written invitation to the Tribunal. However, that obligation only arises where such use of “prior information” was found by the Court to have been “the reason, or a part of the reason, for affirming the decision that is under review”. It was accepted in SZEEU, following earlier opinions of North J in VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33], that a failure to put prior information to an applicant in a written invitation for comments would not give rise to jurisdictional error vitiating its ultimate decision, if the Tribunal provided other reasons for affirming the delegate’s decision which could be identified as “entirely independent of the failure to follow s 424A” (see Allsop J at [233] of SZEEU, Weinberg J agreed at [110]‑[111]).
At times it is difficult to apply this principle where a Tribunal has referred to many aspects going to a general finding of credibility which influenced the whole of the Tribunal’s reasoning when assessing an applicant’s refugee claims. In SZEEU itself the majority Judges did not accept a submission attempting to isolate independent reasoning, with Allsop J saying: “the influence of credit appears to me to pervade the whole of the reasons of the Tribunal” (see [234]).
I have carefully considered the Tribunal’s reasoning in the present case, and consider that it is possible to isolate the Tribunal’s reference to inconsistency in the applicant’s claims as to what happened on his return from Australia in 2000. I have analysed the Tribunal’s reasons above, and explained at [28] that it gave alternative reasons for finding that all the applicant’s claims of harassment while in service did not give rise to a well‑founded fear of persecution if he were to return to Lebanon, due to the lapse of time and his demobilisation from the Lebanese Army. In my opinion, this reasoning was unaffected by the Tribunal’s adverse opinion of the truth of the particular factual claims about what happened on the applicant’s return from Australia. I consider that on a fair reading of the Tribunal’s reasons, its opinion that “there is no prospect that this mistreatment would continue if he were to return to Lebanon” was arrived at upon an assumption which was accepting the applicant’s evidence as true.
For the above reasons I have not been able to find jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision for which relief is barred under s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding forty‑nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 June 2006