SZGTH v Minister for Immigration

[2006] FMCA 649

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGTH & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 649

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – allegation of breach of s.424A of the Migration Act 1958 (Cth) – notice of objection to competency filed by the First Respondent

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 417; 424A; 424A(1); 424A(3)(b); 477(1); 483

NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2

First Applicant: SZGTH

Second Applicant: SZGTI

Third Applicant: SZGTJ

Fourth Applicant: SZGTK

Fifth Applicant: SZGTL

Sixth Applicant: SZGTM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDEGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1852 of 2005

Judgment of: Emmett FM

Hearing date: 26 April 2006

Date of last submission: 26 April 2006

Delivered at: Sydney

Delivered on: 3 May 2006

REPRESENTATION

Applicant appearing in person

Counsel for the First  Respondent: Ms S. A. Mason

Solicitors for the Respondent: Ms A. Mansour

ORDERS

1. That the applicants be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. The application before this Court is dismissed.

4. That the applicants pay the First Respondent’s costs in an amount of $4,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1852 of 2005

SZGTH

First Applicant

SZGTI

Second Applicant

SZGTJ

Third Applicant

SZGTK

Fourth Applicant

SZGTL

Fifth Applicant

SZGTM

Sixth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

“As Corrected”

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 7 October 2003, to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.

2. The first named applicant is a 45 year old male who claims to be a citizen of Lebanon and of Lebanese ethnicity and Christian faith (“the First Applicant”).

3. The First Applicant also has a wife (“the Second Applicant”), 3 sons and a daughter who are included in the applications for a protection visa, to the Tribunal and before this Court, but whose status is determined by the status of the First Applicant. Their claims were, and remain, dependent on the claims of the First Applicant.

4. The First Applicant arrived in Australia on 17 August 2001 having legally departed from Beirut on a passport issued in his own name.

5. On 29 January 2003, the First Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

6. The First Applicant claimed that he feared persecution by Syrian and Lebanese intelligence by reason of his belief and demands for Lebanese independence from Syrian interference, and all other foreign troops. The First Applicant claimed that if he were to return to Lebanon he would be ‘kidnapped, detained and tortured’. The First Applicant also claimed that he fears for the safety of his wife and 4 children.

7. On 18 February 2003, the Delegate refused the applicants’ application for a protection visa on the basis that the First Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

8. On 25 February 2003, the applicants lodged an application for review of the Delegate’s decision by the Tribunal. On 11 September 2003, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

9. On 8 July 2004, the First Applicant wrote to the Minister for Immigration and Multicultural Affairs requesting that the Minister exercise her discretion pursuant to s.417 of the Act, to intervene favourably in the Applicant’s immigration status.

10. On 26 February 2005, the Department of Immigration and Multicultural and Indigenous Affairs wrote to the First Applicant stating that the discretion pursuant to s.417 of the Act would not be exercised in his case.

11. On 14 July 2005, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia owes protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

Tribunal proceeding

1. On 26 August 2003 the First Applicant and Second Applicant gave oral evidence to the Tribunal. At the Tribunal hearing the applicants were assisted by their migration agent and an interpreter.

2. The outcome of the Tribunal proceeding is adequately summarised in the First Respondent’s Outline of Submission, set out as follows:

   “The Tribunal:

   (a) Accepted that the applicant was a citizen of Lebanon (CB 135.9).

   (b) Accepted that the applicant had been detained by the Syrian military in 1982 and again 3-4 years later and that on the first occasion he was beaten and required hospitalisation on his release (CB 136.5).

   (c) Found itself satisfied that on the basis of the applicant’s own evidence at hearing that he had never been politically involved in Lebanon, even if the applicant’s treatment had been of sufficient severity as to constitute persecution in the 1980’s, it was not by reason of any Convention reason.

   (d) The evidence given at the hearing by the first and second applicants was simply not credible. In respect of the applicant there were inconsistencies between his claims at hearing at his written claims (CB 137.2 to 137.5).

   (e) On the basis of oral evidence by the applicant and the second application at hearing, the Tribunal did not accept the applicant had been detained shortly prior to his leaving Lebanon (CB 138.5).

   (f) The applicant’s evidence suggested that he had been making plans to come to Australia as a temporary employee, before his departure. The Tribunal took the view that once those plans had fallen through the applicant travelled to Australia regardless and once here applied for a protection visa (CB 138.6).

   (g) Did not consider the applicant to have a well founded fear of persecution at the time of his departure from Lebanon or that he was unable to return because of any well founded fear at the time of the decision or in the reasonably foreseeable future (CB 138.8).”

The proceeding before the Court

1. The applicants’ application filed on 14 July 2005 is in the following terms:

   “I apply for Refugee Review Tribunal it’s refused. I need to apply for Federal Magistrat (sic) Court to review the decision because I am not happy with the decision, it’s wrong.”

2. Plainly the application discloses no error capable of judicial review. Further, save for the issue discussed below relating to the Tribunal’s obligations pursuant to s.424A of the Act, there is no jurisdictional error apparent in the decision of the Tribunal. The First Respondent submits that there is no error at all and there is no breach by the Tribunal of its obligations pursuant to s.424A of the Act. That issue is discussed below.

3. The Tribunal had regard to a submission dated 20 August 2003 provided to the Tribunal by the applicants’ migration agent. Relevantly, the submission is as follows:

   “The applicant made claims under the Refugees Convention that centred around his fear of return to Lebanon, where he faced persecution at the hand s of the Syrian soldiers.

   As a transport worker, [the Applicant] had often to pass through military checkpoints and was kidnapped several times over his suspected involvement with the Lebanese Forces militia of Samir Geagea.

   [The Applicant] was already known to the Syrians because of his fathers altercation with them over a truck accident that resulted in his being forced to hide in a mountain village and escape Lebanon 14 years ago.   

   In one incident in 2000 he was arbitrarily detained by intelligence officers and taken for interrogation at the Al Kale’at Centre. [The Applicant] was asked to inform on Lebanese Forces members active in the region.

   The applicant fears persecution on account of his political opinion against the Syrian presence in Lebanon and his suspected involvement with the Lebanese forces.”

4. This submission essentially repeats and republishes the claims made by the First Applicant in a statement provided by him to the Delegate in support of his protection visa application (NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [36]-[37]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at [20]).

5. Before the Tribunal, the First Applicant gave oral evidence that he had no direct contact with the Syrians after 1986 and that they had asked him to work as an informer 3 or 4 years after the first arrest in 1982. The Tribunal noted that the First Applicant also said he was only detained twice, once in 1982 and again in 1986.

6. The Tribunal noted that the First Applicant was unable to explain the discrepancies between his oral evidence of having no contact with Syrians after 1986 (referred to in para 23 above) and his “previous written claims” that he was arrested and detained for several days after the return of Patriarch Sfeir from the United States; that he was questioned in 2000 following the municipal elections; and that he was later asked to act as an informer for the Syrians. It would appear that the Tribunal was having regard to both the written statement before the Delegate and the written statement provided to the Tribunal

7. The Tribunal found that the evidence of the First Applicant about his claims of this later arrest, detention and harassment was “most unsatisfactory”. The Tribunal also found that the oral evidence given by the First Applicant and the Second Applicant about events in 1986 was “simply not credible”.

8. In reaching this conclusion, the Tribunal may well have mentioned information that was also before the Delegate. The question for consideration, by this Court, is whether, any such information formed the reason or part of the reason for the Tribunal affirming the decision under review and was therefore subject to the requirements of s. 424A(1) of the Act.

9. Justice Allsop in SZEEU at [216] stated the following:

   “One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reason of the Tribunal which involves “information” does not concluded the question whether it was (and, in the relevance sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or part of the reason). Having thus ascertained the reasons or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal’s reasons of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds differ”

10. Although the Tribunal decision refers to “Patriarch Sfeir”, a name mentioned only in the First Applicant’s statement to the Delegate, it is only mentioned by the Tribunal in the context of identifying the timing of the First Applicant’s claim of arrest and detention.

11. The information relied upon by the Tribunal in making its adverse findings in respect of the credibility of the First applicant and Second Applicant arose from inconsistencies in the evidence of the First Applicant and the Second Applicant between their oral evidence as to their contact with the Syrians after 1986 and their written submission dated 20 August 2003 and provided by them, through their migration agent, to the Tribunal. That submission referred to the arrest of the First Applicant, his detention, his interrogation and the request to him to inform on Lebanese forces. These inconsistencies constitute the information upon which the Tribunal relied in rejecting the claims of the First Applicant to be of any interest to the Syrians after 1986.

12. The relevant information, to which the Tribunal had regard in its reasons, was in respect of information clearly republished by the applicants through their submission, dated 20 August 2003, and provided to the Tribunal for the purposes of the Applicant’s review application. In those circumstances, the information was provided to the Tribunal by the applicants for the purposes of their review application. Section 424A(3)(b) of the Act excludes such information from the requirements of s.424A(1) of the Act.

13. Accordingly, the requirements of s.424A(1) are not enlivened.

14. The applicants’ application otherwise discloses no reviewable error and none is otherwise apparent from the Tribunal’s decision.

15. In the circumstances, the Tribunal’s decision, made on 11 September 2003 and handed down on 7 October 2003, is a privative clause decision.

16. On 29 August 2005, a notice of objection to competency was filed by the First Respondent on the ground that the applicants’ application, filed in this Court on 14 July 2005 and seeking judicial review of the Tribunal decision, was filed outside the time limit of 28 days provided for by s.477(1) of the Act. In the circumstances, this Court has no jurisdiction to consider the applicants’ application for judicial review and, accordingly, the application is dismissed.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Kwong

Date:  3 May 2006