SZFUB v Minister for Immigration
[2007] FMCA 2133
•20 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFUB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2133 |
| MIGRATION – Visa – Protection (Class AZ) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Lebanon claiming fear of persecution for reason for reason of political opinion – no reviewable error. |
| Migration Act 1958 (Cth) s.474 |
| SZHMW v Minister for Immigration [2006] FMCA 321 NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 236 MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 |
| Applicant: | SZFUB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 605 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 4 & 17 December 2007 |
| Date of Last Submission: | 17 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2007 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | Not represented |
| Counsel for the Respondent: | Mrs Sirtes |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 605 of 2007
| SZFUB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of Lebanon, asks the court to quash a decision of the Refugee Review Tribunal made on 25th January 2007.
The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks other orders that are beyond the jurisdiction of this court.
Background
The applicant and his wife arrived in Australia on 6th April 2001 and applied for Protection (Class AZ) visas on 19th June 2001.
The applicant claimed to fear persecution because of his high political profile with the group associated with General Aoun.
A delegate of the Minister for Immigration and Multicultural Affairs, now the Minister for Immigration and Citizenship, refused the application for visas on 24th August 2001. The applicant then applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
The applicant forwarded an application for review to the Refugee Review Tribunal on 4th September 2001. He submitted a written statement in support of his application.
The Tribunal invited the applicant to attend a hearing on 22nd January 2002. The applicant provided a statement by one Pierre Raffoul and some other letters to the Tribunal on 4th January 2002 and indicated that he wanted to bring another person to the Tribunal hearing.
After the hearing, the applicant provided to the Tribunal a letter from a social worker and a copy of the birth certificate of their child, who was born in Australia on 19th January 2002.
The Tribunal handed down its decision on 5th March 2002, affirming the delegate’s decision. The applicant sought judicial review of that decision from the Federal Magistrates Court and on 5th September 2006 Nicholls FM made orders by consent quashing the Tribunal decision and issuing a writ of mandamus, requiring the Tribunal to determine the applicant’s claims according to law.
The Tribunal wrote to the applicant on 2nd November 2006, inviting him to attend a hearing on 8th December 2006. The applicant replied on 6th November, appointing one Toufic Laba-Sarkis as his representative and authorised recipient for the purpose of the proceedings. He also responded to the hearing invitation, indicating that he wished to attend the hearing and required the services of an interpreter in the Arabic language. He also stated that he wanted Mr Laba-Sarkis to attend the hearing.
The applicant attended the hearing, accompanied by his wife and son. He and his wife brought their Lebanese passports with them. Both the applicant and his wife gave evidence at the hearing.
The Tribunal handed down its decision on 25th January 2007, affirming the delegate’s decision not to grant the applicant a Protection (Class AZ) visa.
The Refugee Review Tribunal decision
A copy of the Tribunal Decision Record can be found at pages 123 to 138 of the Court Book. The Tribunal set out the applicant’s claims and evidence, including the evidence of the applicant and his wife at the hearing. The Tribunal also referred to independent country information, being:
a)Country Reports on Human Rights Practices Lebanon, released 8 March 2006;
b)Report on implementation of Security Council Resolution 1559, October 2005, Prepared by Special UN Envoy Terge-Roed Larson, dated October 2005; and
c)Fourth Semi-Annual Report of the UN Secretary-General to the Security Council on the implementation of Security Council Resolution 1559 dated 19 October 2006.
The Tribunal’s Findings and Reasons are set out on pages 135 to 138 of the Court Book. The Tribunal accepted that the applicant was a Lebanese national, based on his passport. It also accepted that he was a Maronite Christian, and that he had worked as a bricklayer before coming to Australia.
The Tribunal did not accept that the applicant left Lebanon because he was persecuted or that he feared further persecution in Lebanon. Whilst the Tribunal accepted that the applicant was a member of a political movement led By General Aoun it did not accept that he was a leader of a local network or a high profile member or that he was detained by Syrian or Lebanese Intelligence or Hezbollah.
The Tribunal found that the applicant’s evidence was not consistent with his claims that he left Lebanon because he was persecuted.
The Tribunal also relied on the country information to find that the political situation had changed significantly since the applicant left Lebanon in 2001.
In addition, the Tribunal noted the applicant’s claims that he would face harm because of his religion if he were to return home.
The Tribunal found that there was no credible evidence that the applicant would face serious harm for that reason if he returned to his country.
The Tribunal went on to find that the applicant had “given untruthful evidence”[1] and therefore did not consider that the letters he submitted in support of his claims provided reliable evidence of the facts in those letters. The Tribunal said:
The Tribunal finds that those letters were written by persons without first hand knowledge of what happened to the applicant in his country.[2]
[1] See Court Book at 138
[2] Court Book at 138
The Tribunal also considered the applicant’s claim that he could not return to his country because he was suffering “health and depression problems”.[3] The Tribunal, however, found that there was no plausible evidence to support that claim.
[3] Court Book at 138
In summary, the Tribunal found:
In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered or will suffer persecution for a Convention reason, including because of his religion, his political opinion, or his imputed political opinion from Hezbollah, Syrian intelligence, Lebanese intelligence/authorities, Iran, Muslims or anyone else in his country either now or in the reasonably foreseeable future if he returns to Lebanon.[4]
[4] Ibid
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Lebanon within the meaning of the Refugees
Convention and affirmed the decision not to grant the applicant a Protection (Class AZ) visa.
Application to the Federal Magistrates Court
In his application for review, the applicant seeks the following orders:
(1)The decision of the Refugee Review Tribunal be quashed and the issue of refugee be decided by the Honourable Court because in both decisions, previous one and the current one, the Members or decision makers proved to be incompetent and the reading of their decision would lead the Honourable Judge to see how their mind is unreasonable.
(2)The Department to grant the applicant and his family a bridging visa to stay in Australia until a decision is made by the Federal Magistrates Court.
The court does not have the jurisdiction to grant all of the orders sought by the applicant. As to the first order, the court has the power to quash the Tribunal decision if satisfied that the decision is affected by jurisdictional error. However, the applicant also asks the court to make a finding of fact about the question of whether or not the applicant is a refugee, which is no more than an application to embark on merits review. The court has no power to make that finding.
Again, the interim order directed to the Department of Immigration and Citizenship requiring the grant of a bridging visa is outside the court’s jurisdiction.
The applicant relies upon the following grounds:
(1)The Tribunal failed to apply Article 1A(2) of the Convention.
The Tribunal ignored the persecution suffered by the applicant in Lebanon and the decision does not reflect that the Tribunal understood the circumstances and the losses suffered by the applicant’s spouse.(2)The Tribunal did not logically consider the applicant’s claim as it should be considered rather strayed to talk about Nepal (4th para on p.8).
(3)The evidence given by the applicant was straightforward.
The applicant was persecuted in the past, his fear is well founded and currently the subjective fear of Hezballah (sic) is straightforward and well founded.(4)The Tribunal made serious errors of facts such as “the applicant worked as a bricklayer in an engineer’s office”. The work was carried out outside the office and the Tribunal overlooked the persecution and harm suffered by the applicant. The passports issued were misunderstood and the Tribunal what was said to the previous Member. The Tribunal denied, without evidence, that the applicant had to pay a bribe to obtain his passport. The Tribunal had no plausible evidence to accuse the applicant as inventing claims to assist his application for protection.
Submissions
The applicant did not file any written outline of submissions.
He attended court on 4th December and claimed that the Tribunal did not look at his application in a proper way. He said he told the Tribunal that he had been tortured by the Syrians.
The applicant also told the court that he was suffering “a lot of stress” because he and his wife had separated. He complained that he had not seen his son for 6 weeks and that his wife had placed an apprehended violence order on him.
The applicant sought an adjournment of the proceedings until January, saying that he could not remember what was in his application and all his thoughts were with his son. I refused the adjournment until January, but adjourned the application until 17th December. I told the applicant that he could make a final submission about his case on that day.
The applicant attended court on 17th December 2007 and made a further submission. He told the court that he had not had any proper legal advice from the panel lawyer because the lawyer had not received the court book at the time. He again told the court about his marital difficulties.
The applicant went on to say that, basically, he was not happy with the Refugee Review Tribunal decision. In particular, he complained that the Tribunal did not believe him and said that he was a genuine refugee.
The applicant also took exception to a number of the Tribunal’s factual findings. He referred particularly to a statement by the Tribunal that:
The Tribunal told the applicant that it had some concerns about his claims; he claims that he was persecuted but he was living and working in Nepal supporting himself and although he says he had two incidents in 2001 nothing else appears to have happened to him.[5]
[5] Court Book at 130
The applicant told the court that he had never been to Nepal and had never told the Tribunal that he had.
Conclusions
Turning to the applicant’s grounds, I am not satisfied that the decision shows any failure by the Tribunal to have regard to the essential elements of the applicant’s claim to have been persecuted. The Tribunal considered the various aspects of the applicant’s claim but was not satisfied about the truth or plausibility of the applicant’s claims.
Whilst the applicant is aggrieved that the Tribunal did not believe that he left Lebanon because he was persecuted and that he feared persecution if he were to return, his claim is a challenge to a factual finding by the Tribunal. Findings of fact are matters for the administrative decision-maker, and it is not for the court on judicial review to undertake a merits review of the applicant’s case.
This is particularly so where findings about credibility are concerned, so long as there is evidence upon which it is possible for the Tribunal to make such a finding.
In my view, the Tribunal has not been shown to have failed to consider an integer of the applicant’s claim, and the applicant’s first ground fails.
The applicant, in his second ground, claims that the Tribunal did not consider his claim logically, but “strayed” to talk about Nepal (quite incorrectly). Whilst it appears that the reference to Nepal is indeed an error on the part of the Tribunal, it is a factual error at worst and not a jurisdictional error. The error may well be a typographical error. In any event it is irrelevant (see SZHMW v Minister for Immigration)[6].
[6] [2006] FMCA 321
The applicant takes issue with the logicality of the Tribunal’s consideration of his claim, but it is well established that want of logic does not of itself constitute an error of law (NATC v Minister for Immigration and Multicultural and Indigenous Affairs[7]; NACB v Minister for Immigration and Multicultural and Indigenous Affairs[8]).
[7] [2004] FCAFC 52
[8] [2006] FCAFC 236
The applicant’s second ground fails.
The applicant’s third ground states that the evidence given by the applicant and his wife was “straightforward”. That may be so, but this ground is no more than a challenge to the Tribunal’s factual findings against the applicant. It is a claim for merits review of the applicant’s case, which is not available on judicial review.
The applicant’s third ground fails.
The applicant’s fourth ground claims that the Tribunal made incorrect findings of fact. Whether or not the Tribunal did so, incorrect findings of fact are not sufficient to constitute jurisdictional error (MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs[9], Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[10] and NAAP v Minister for Immigration & Multicultural & Indigenous Affairs.[11]).
[9] [2005] FCAFC 94 at [28]
[10] [2005] FCAFC 8 at [31]
[11] [2003] FCAFC 76 at [37]
It follows that the applicant’s fourth ground fails.
The applicant is not legally represented. I have read through the Tribunal decision with an eye to ascertaining whether any other jurisdictional error may be argued. I do not see any.
The Tribunal decision is a privative clause decision as defined by
s. 474(2) and is not subject to an order in the nature of certiorari as the applicant wishes.
The application will be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 20 December 2007
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