SZGJG v Minister for Immigration and Citizenship

[2007] FCA 236

FEDERAL COURT OF AUSTRALIA

SZGJG v Minister for Immigration & Citizenship [2007] FCA 236

MIGRATION – consideration of whether the Federal Magistrate erred in failing to find jurisdictional error on the part of the Refugee Review Tribunal – consideration of aspects of the conduct of the appellant’s migration agent.

Decision

No error found.  Appeal dismissed with costs. 

Migration Act 1958 (Cth)

SZGJG v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD2461 OF 2006

GREENWOOD J
27 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD2461 OF 2006

BETWEEN:	SZGJG Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
AND	REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	27 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the appellant to read on the hearing of the appeal an affidavit of the appellant filed on 15 December 2006.

2.The title of the first respondent is amended to ‘Minister for Immigration and Citizenship’. 

3.The appeal is dismissed with costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD2461 of 2006

BETWEEN:	SZGJG Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
AND	REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GREENWOOD J
DATE:	27 FEBRUARY 2007
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an appeal from the judgment of Scarlett FM given on 27 November 2006 by which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal made on 12 April 2005 and published on 5 May 2005 affirming a decision of the delegate of the first respondent refusing the appellant the grant of a protection visa.  The appellant has appeared before me this morning to make submissions in support of the grounds of appeal assisted by an interpreter who has assisted in translating the Arabic language into English for the Court.  In the course of the appellant’s submissions, he made a number of observations and they are these.

2. The appellant is a Lebanese man who is a proud man and proud of his family tradition and the integrity of his family.  He came to Australia to visit his family and met an immigration agent who gave him advice and caused him to sign papers by which an application was made for a protection visa as a refugee on the footing that the appellant held a well foundered fear of persecution for a Convention reason should he return to his country of origin.  In the course of dealing with a review of the decision of the Minister’s delegate, the Tribunal invited the appellant to attend before the Tribunal and provide oral evidence which occurred on 5 May 2005.  Evidence was also taken by the Tribunal from the appellant’s brother and sister‑in‑law.  The Tribunal made a decision on the basis of the application before it for review of the decision on the footing, of course, that the appellant had contended that he was a refugee.

3. The appellant says this morning that he was hoping that the Tribunal would implement one of two choices.  Either, accept withdrawal of the application made on the footing that the appellant was a refugee in circumstances where the appellant made it clear to the Tribunal that he did not press such a position or secondly, the appellant hoped that the Tribunal would formulate a report or recommendation that action be taken against the migration agent who had falsely and improperly induced the appellant to apply for a protection visa as a refugee.  The appellant says that he was not aware that such an application had been made and did not authorise it.  The appellant says that the Tribunal should have put to the appellant the question “Are you a refugee or not?” and “Do you wish to continue with the application or not?”  The appellant says that he spoke honestly and frankly to the Tribunal and told the Tribunal what should happen and that he did not wish to pursue his application on the footing of an allegation that he was a refugee.

4. The appellant expresses the view, understandably, that the Tribunal as a responsible authority has, what he describes as a moral and legal duty, to act in a way which will deliver justice in the context of all of the circumstances confronting the appellant as they emerged.  By way of illustration of this belief, the appellant postulates an analogous example where, should he go to see a specialist about some discomfort and pain he suffers from toothache, but it transpires that the specialist he is directed to is an eye specialist, then such a specialist ought to say that it is not open or competent for him to deal with that matter, and make recommendations about where the appellant ought to go.  Based on this analogy the appellant believes that the Tribunal has a duty to “freeze” the status of the appellant and assist the appellant in taking action against the migration agent and in assisting the appellant in dealing with the true matter or his application, namely, his desire to stay in Australia as part of his family arrangements, duties and desires.

5. The appellant also observes that the conduct of the agent has resulted in his brother raising $15,000 which now has been entirely lost because the agent has lodged applications on an unauthorised and incorrect footing.  The appellant also makes reference to other monies which have been expended in the course of pursuing these matters.  The appellant says that he and his brother are victims in this matter and that the Tribunal engaged in jurisdictional error in failing to set aside the decision of the Tribunal.  The contention is that Scarlett FM fell into error by failing to find jurisdictional error on the part of the Tribunal.  At the threshold it seems to me important to explain the role of the Tribunal in dealing with these matters.  The position, of course, is that applications made for a protection visa are determined by those persons who hold delegations for such a purpose and under the provisions of the Migration Act 1958 (Cth) the delegate must make a decision to either grant or reject the application based upon the footing that the applicant is a person who claims to be a refugee for the purposes of the Migration Act 1958 (Cth) having regard to the Refugees’ Convention as amended by the Refugees’ Protocol.  That is to say a person who claims to have a well foundered fear of persecution for a Convention reason. 

6. Once a decision is made by the delegate to reject an application, a review of that decision on the merits can take place before the Tribunal.  The Tribunal’s role in undertaking that review is to determine whether it can be affirmatively satisfied that the appellant is a person who meets the description of a refugee and thus a person who holds a well‑founded fear of persecution for a Convention reason should the appellant return to his country of origin.  That role and the powers of the Tribunal are confined to dealing with that question.  It is not open to the Tribunal, although it may seem unfortunate to the appellant, for the Tribunal to enter upon a consideration of or make recommendations about the conduct of the migration agent, except to the extent, of course, that it is material to do so in dealing with questions going to the review.  It is also not open to the Tribunal to adopt a role which makes recommendations about steps the appellant might take in seeking some other form of consent, approval or authority from the first respondent in relation to his proposed stay in Australia.

7. The appellant filed on 15 December 2006 an affidavit in support of the appeal. That affidavit makes it clear that what the appellant was really seeking was a ‘work permit and business visa’ and ‘not a refugee application’. The affidavit also raises a second contention which is that the Tribunal took evidence from the appellant and the appellant’s brother and sister‑in‑law and failed to put adverse information to him or explain to him the information upon which the Tribunal relied in reaching its decision. There is no substance in this contention because the evidence upon which the appellant relied was properly provided, frankly and directly, by the appellant to the Tribunal and in those circumstances, no obligation arose in the Tribunal to put to the appellant the information which the appellant had himself and through his witnesses provided to the Tribunal. Accordingly, there is simply no contravention of s 424A(1) of the Migration Act 1958 (Cth) on the part of the Tribunal.

8. At page 72 of the Appeal Book, the Tribunal recites some of the background circumstances and they are these.

   ‘In his original protection visa application, the Applicant claimed fear of persecution in Lebanon for Convention-related reasons of “religion.”  Briefly, it was claimed that the Applicant is Muslim who lived in a Christian suburb in Lebanon and faced harassment from Christians.  The Applicant denied these claims at the RRT hearing and gave positive evidence of inter‑religious conflict having become a thing of the past.  He also said he lives and works amongst Christians in Lebanon and has no problem with them.

   The Tribunal nevertheless asked the Applicant some questions of its own in order to satisfy itself that the Applicant did not have any Convention-related claims in relation to Lebanon.

   At the hearing, the Applicant, his brother and sister-in-law all gave evidence to the effect that the Applicant had been gulled into making false Convention‑related claims by his former migration agent, Mr Zafar.  They said that Mr Zafar persuaded them to lodge a protection visa application for the Applicant merely to buy time for him in Australia.  They said that their attempts to contact Mr Zafar, their authorised recipient, in connection with the Applicant’s application had been unsuccessful in spite of Mr Zafar providing them with four mobile telephone numbers.

   It is reasonable to assume that the Applicant and his witnesses had nothing to gain from making these admissions.  The Applicant and his brother made them under oath and they were supported by the sister‑in‑law.  The Tribunal found them to be candid witnesses who were prepared to correct a past wrong doing into which they had been misled by Mr Zafar, even though this meant that the Applicant’s protection visa application could not succeed.

   The Applicant seeks to remain in Australia on compassionate, public interest grounds relating to his brother’s need for him to help operate an expanding family hairdressing business.  The Tribunal explained that it does not have jurisdiction to decide such claims.  The Applicant understood this.  Such claims may be presented to the Minister who has non‑binding powers to consider them under s 417 of the Act’. 

9. Having regard to those findings, the Tribunal then determined that the appellant is indeed a national of Lebanon and that the appellant is a reliable and credible witness and that Mr Zafar mishandled his affairs.  However, as a result of the evidence, the Tribunal concluded that the application could not succeed because the appellant simply was not a refugee for the purposes of the Migration Act 1958 (Cth).

10. Notwithstanding those findings and the position adopted by the appellant before the Tribunal, the appellant filed an application before the Federal Magistrates Court and an amended application on 27 July 2005 seeking to set aside the decision of the Tribunal.  The appellant appeared before Scarlett FM and made oral submissions and a number of those submissions are consistent with precisely the views and submissions the appellant has put before this Court.  At paragraph 17 of the reasons (AB84), Scarlett FM recognises that the appellant told the Court that he did not want to apply for a visa as a refugee, that he did not have any enemies and that he is not a refugee.  At paragraph 19, Scarlett FM noted:

    ‘The Applicant reiterated that he was not a refugee and that he had always got on well with his neighbours and wanted an opportunity to stay and work in Australia and send money to his parents. He said that the situation in Lebanon was not good at the moment.’

11. These submissions are entirely consistent with the proposition that has been put by the appellant to this Court.  The appellant is, plainly enough, concerned that an application went forward on a footing which was not authorised by him and misstated his true and real concerns and his objectives in seeking to stay in Australia.  As a result of these findings, Scarlett FM, quite properly, concluded that the Tribunal had not misdirected itself and there was no jurisdictional error to be found in the decision or the conduct of the review.  At paragraph 21 of Scarlett FM’s decision, his Honour observes that the application before his Honour is entirely without merit and further concluded at paragraph 24 that his Honour was satisfied that the application before the Federal Magistrates Court had been brought for a collateral purpose.

12. In this Court, the appellant identifies at AB89 and AB90 grounds of appeal in these terms:

    ‘His Honour judgment was based on the decision of the Refugee Review Tribunal.  The Applicant was not aware of the application lodged by migration agent as being a refugee or protection visa application.’

13. The second ground is in these terms:

    ‘With utmost respect to his Honour’s judgment I ask the Federal Court to reconsider because I was not aware of refugee application and did not tell the Tribunal that I accept to have my application treated as an application for refugee.  Rather, I would have preferred to withdraw my application and such opportunity was not given to me by the Tribunal.’

14. I have already dealt with the affidavit filed on 15 December 2006 which reinforces those contentions. 

15. That affidavit also exhibits a letter which deals with propositions put to the then Minister for Immigration, Multicultural and Indigenous Affairs, Senator Vanstone.  That letter identifies particular correspondence and addresses the extent to which the Minister may intervene in certain circumstances, particularly those relating to ‘compelling and compassionate circumstances’, and those relating to ‘Sponsored Family Visitor Visa’ arrangements.  The ultimate result in this matter must necessarily be that the appeal to this Court is dismissed with costs because there is no error on the part of Scarlett FM in failing to find jurisdictional error on the part of the Tribunal.  The appellant believes that the Tribunal ought to have taken a different course and invited the appellant to withdraw his application, ought to have taken steps to make observations about the role of the migration agent and steps that might be directed, more particularly, to the basis upon which the appellant seeks to stay in this country.

16. The Tribunal cannot descend into those questions unless they are expressly relevant to the determination of the review of the delegate’s decision.  Those matters are not matters which the Tribunal can deal with.  It must deal with the question of whether the appellant is a person who has a well‑founded fear of persecution for a Convention reason should he return to his country of origin.  The plain circumstance in this case is that the appellant recognises, quite properly, that he is not a person who has a fear of persecution nor a well-founded fear of persecution and is thus not a person who is a refugee.  He, in consequence, is not a person to whom Australia has protection obligations under the Migration Act 1958 (Cth) for the purposes of the Refugees Convention as am ended by the Refugees Protocol.  

17. I have attempted to explain these circumstances in a little detail because I want to address the perception of the appellant that the Tribunal ought to have done something which it failed to do.  I want to try and emphasise that the matters that the appellant wished the Tribunal to agitate were simply matters that it could not agitate in the way the appellant seeks.

18. Accordingly, the order of the Court must be that the appeal is dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        27 February 2007

Solicitor for the Appellant	Appellant – Self Represented
Counsel for the Appellant:	Appellant – Self Represented
Solicitor for the First Respondent:	S Burnett, Clayton Utz
Date of Hearing:	27 February 2007
Date of Judgment:	27 February 2007