SZGUO v Minister for Immigration - [2006] FMCA 1347

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1347

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal misconstrued and misapplied s.424A(1) of Migration Act 1958 (Cth) – whether independent information excluded by s.424A(3)(a) of Migration Act 1958 (Cth) from obligation of s.424A(1) of Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3); 424A(3)(a); 424A(3)(b); 474; pt.8 div.2

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178

Applicant:

SZGUO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1914 of 2005

Judgment of:

Emmett FM

Hearing date:

5 September 2006

Date of last submission:

5 September 2006

Delivered at:

Sydney

Delivered on:

13 September 2006

REPRESENTATION

Solicitors for the Applicant:

Mr S. El-Hanania, Slattery Thompson

Counsel for the Respondent:

Ms S.McNaughton

Solicitors for the Respondent:

Ms A. Nanson, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1914 of 2005

SZGUO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 August 2001.
The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Delegate”) dated 16 March 2000. The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The applicant was born on 5 January 1965 and claims to be from Lebanon and of Maronite ethnicity and Christian faith (“the Applicant”).
The Applicant claims that prior to arriving in Australia he was self employed.
The Applicant arrived in Australia on 28 December 1999, having legally departed from Beirut on a passport issued in his own name and a visa issued on 1 December 1999.
On 7 March 2000, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act. The Applicant’s wife was a secondary applicant in the Applicant’s protection visa application.
In his protection visa application, the Applicant claimed that he feared persecution by the Syrian Army because he tried to prevent them from extorting money from him and pilfering goods from his factory. Before the Tribunal, the Applicant also claimed that he worked as an informant to provide a childhood friend, who was member of the Lebanese Forces, with information about the Syrian Army’s movements.
On 16 March 2000, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 29 March 2000, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 23 August 2001, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 20 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

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

The Tribunal proceeding

The Applicant gave oral evidence at a hearing before the Tribunal on 16 August 2001. The Tribunal had before it the Department’s file including a statement by the Applicant filed in support of his primary application. In that statement the Applicant claimed persecution at the hands of the Syrian Army because of his association with the Lebanese Forces Party.
The Applicant claimed that he was extorted by the Syrian Army and required to make monthly payments to allow him to work peacefully. The Applicant claimed that members of the Syrian Army would come to his factory and take product without paying for it including tools.
The Applicant complained that on one occasion he had built a fireplace and a Syrian Officer came and saw it and wanted to take it for free. The Applicant said an argument resulted in which the Syrian Officer pulled off a cross that the Applicant was wearing as a necklace threw it on the floor, stamped on it and said rude words. The Officer then took the fireplace. The Applicant asserted that the following day the same Officer returned to his factory with other members of the army as a result of which the Applicant ran and hid. The Applicant asserted that his brother told him that they had been coming looking for the Applicant and they wanted him. The Applicant said members of the Syrian army then broke into his house looking for him but that he was not there at the time.
The Applicant asserted that the Syrian army then threatened to take over his factory and give it to an Alawi Sect Group who were working for the Applicant at his factory. The Applicant said that the Alawi Sect is the same sect that the Syrian Army who stole from him was from.
In a further statement lodged with the Tribunal and dated 13 August 2001, the Applicant stated that he joined the Lebanese Forces (the Christian Militia) in 1982. The Applicant stated that in mid 1987, a person Antoine approached him and asked him if he would provide information about the Syrians in and around the village in which he lived. Thereafter the Applicant began providing information to Antoine once a week. The Applicant stated that between November 1987 and April 1988 he lost contact with Antoine. Thereafter he was approached again by Antoine although by now he was working in North Lebanon. The Applicant continued to inform Antoine on Syrian movements every fortnight. The Applicant said that he told Antoine that because of his work he was moving around a lot more and maybe “I will be able to provide him with information about a wider range of Syrian troops, movements and concentrations.”
The Applicant stated that after the liberation war the Lebanese Forces were a political entity and the Applicant ceased providing Antoine with information and returned to work at his factory.
The Applicant said that in 1993 he visited relatives in Australia and upon his return found that the situation at his factory had changed drastically and the Syrian troops and Officers were causing many problems in the factory. It was at this time that the extortion demands by the members of the Syrian army commenced.
In relation to the actions of the Syrian Army members the Applicant stated that he could not find any reasonable explanation for their actions and could only speculate as to the reason of the pressure being put on him by the Syrian Army. He said that he feared that they had found out somehow about his previous connections with the Lebanese Forces and that this fear was “founded lately when I met Antoine here in Australia and he told me his side of the story (which is the reason I am making this additional statement).”
The Tribunal noted that the Applicant stated that he is afraid that if were to go back to Lebanon he would be arrested on a fabricated charge or even killed for an unknown reason as has happened to many people in the past who have opposed the Syrian Army’s wishes. The Applicant provided a statutory declaration by Antoine in support of his claims before the Tribunal.
The Tribunal noted that in oral evidence the Applicant stated that his problems began in 1994, that the pressure built up in 1998 and by 1999 he could no longer handle the harassment and so left for Australia. He said that he had a “big fight” with the Syrians and when he complained to the local police nothing was done.
The Applicant told the Tribunal that his factory was now closed and that he and his brothers were intending that it be sold. The Tribunal noted that it asked the Applicant why he could not use the capital from the sale of the factory to relocate elsewhere in Lebanon away from those who were extorting him. The Tribunal noted the Applicant’s response that he believed he was being targeted by the secret service. When the Tribunal asked the Applicant whether it was soldiers or secret service men who had been extorting him, the Tribunal noted the Applicant responded “the same since all soldiers are the secret service.”
The Applicant’s second cousin gave oral evidence before the Tribunal in support of the Applicant. The Tribunal noted that the witness had provided a statutory declaration only shortly before the hearing and had provided the excuse that he had needed to talk with the Applicant about the statement in detail and had not had the opportunity to do that since they met in June 2000 because the cousin’s mother was ill in Queensland and had died in May 2001 (the hearing being August 2001). The Tribunal then had regard to independent evidence before it which it identified with particularity.
The Tribunal accepted that the Applicant had been extorted by Syrian Officers but found that any harm suffered was not for a Convention reason. The Tribunal found that the motivation for the extortion was because the Applicant was perceived as a person of wealth and was not motivated by any Convention reason. The Tribunal rejected the claim that the fight with the Syrian Officer in which the Applicant’s cross was taken from his neck and stamped upon was motivated by religious persecution rather than in the course of the extortion. The Tribunal also found on the evidence before it the Applicant’s inability to access any protection was not because of a Convention reason.
The Tribunal found that the Applicant’s claim that he was extorted because he had acted as a Lebanese Forces (“LF”) spy was “contrived by the applicant and his witness.” The Tribunal provided reasons for that conclusion and concluded that the evidence given by the Applicant and his witness in respect of that claim was “lacking in credibility” because the assertions made by the Applicant in support of those claims were not in accordance with the independent evidence before the Tribunal.
The Tribunal also found that the Applicant’s claim of being an LF spy lacked credibility because it was a claim made so recently before the Tribunal hearing that the Tribunal concluded that it was “concocted to strengthen the applicant’s case”. The Tribunal noted that the Applicant had had considerable time in which to prepare and present his evidence and statutory declarations and that the material containing these claims was presented only in the last few days before the hearing. The Tribunal found unconvincing the witness’s explanation that the delay was caused by concern for his mother’s health since December 2000.
The Tribunal also noted that on the Applicant’s own evidence his factory was now closed, was being sold and that the Applicant would no longer be running the factory and therefore the Syrian Officers would no longer have any reason to extort money from him. The Tribunal found that generally the demonstrators against the Syrian presence in Lebanon, were arrested and detained have received relatively light sentences and the Tribunal found that such short term detentions and sentences do not amount to persecution.
The Tribunal accepted independent evidence before it that there are continuing efforts by the Lebanese government to integrate members of the LF and Christians generally into Lebanese society.
For those reasons, the Tribunal found that the Applicant’s political opinion would, upon return to Lebanon, not give rise to a real chance that he would face treatment amounting to persecution for the purposes of the Convention.
The Tribunal also considered whether the Applicant’s religion, Christianity, may be a reason for the Applicant facing persecution if he were to return to Lebanon. The Tribunal noted that there were many active and committed Christians in Lebanese society and that there was no evidence that the Applicant’s religion might be a reason for him facing treatment amounting to persecution for the purpose of the Convention if he were to return to Lebanon.
Having considered the evidence as a whole the Tribunal was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Tribunal noted that no independent claims were made by or on behalf of the Applicant’s wife and that the fate of her application depends on the outcome of the Applicant’s application. Accordingly neither applicants were found to be persons to whom Australia has protection obligations.

The proceeding before this Court

The Applicant relied before this Court on grounds identified in an amended application filed on 9 March 2006 in the following terms:
“2. The applicant seeks relief under section 39B of the Judiciary Act (Cth) of the grounds that:
(a) The Tribunal misconstrued and misapplied section 424A of the Migration Act 1958 (‘the Act’).
PARTICULARS
I. At page 21 and 22 of the Tribunal’s Decision, the Tribunal elaborated upon the following:
The Tribunal finds the argument of the applicant and his witness that the reason for the Syrians, did not act in this way, was because the Syrian army was not strong enough earlier to be lacking in credibility since the Syrians, according to the above cited independent evidence, which the Tribunal accepts, were in fact stronger..
II. The above was not put to the applicant to comment upon nor was invited to comment upon and as a result the Tribunal purportedly misconstrued section 424A of the Migration Act.
III. At page 22 of the Tribunal’s decision, it was held that:
In making these findings, the Tribunal also finds a lack of credibility on the part of the part of the applicant and the witness in that it was only just before the hearing that they advanced their argument that the applicant’s problem were as a result of the Syrians being for many years in possession of information that the applicant had acted as an LF spy.
The Tribunal at page 22 further held that:
This material has only been presented in the last few days before the hearing…
IV. BY the above the Tribunal did not appreciate it had powers pursuant to section 424A of the Act to seek further information about what was said above and should have invited the applicant to comment upon this information. The failure to observe section 424A of the Act amounted to a jurisdictional error of law.
V. The ‘Act’ prescribes steps that the Tribunal must take in conducting it’s review and those steps are directed to informing the applicant in review (among other things) of the relevance and of the information which is conveyed and it scopes and objects point inexorably to the conclusion that want of compliance with section 424A otherwise the decision deems to be invalid. The Tribunal by not following section 424A failed to give procedural fairness to the Applicant’s which resulted in a jurisdictional error of law.
VI. It is clear that want of procedural fairness must constitute jurisdictional error of law.
VII. The Second Respondent failed to correctly interpret and apply the law: the second respondent failed to identify and implement the legal requirements pursuant to the s 424A of the ‘Act’.
VIII. The Second respondent failed to appreciate that it had both power and an obligation under the ‘Act’ 1958.
3. The Second Respondent’s finding as to the credibility of the Applicant’s claim was not supported by any probative evidence and was so unreasonable that no reasonable Tribunal could have so found.”
The grounds of the amended application can be distilled into two grounds as follows:
i)Ground 1 – allegation that the Tribunal misconstrued and misapplied s.424A of the Act;
ii)Ground 2 – allegation that the Tribunal’s finding as to the credibility of the Applicant’s claim was not supported by any probative evidence and was so unreasonable that no reasonable Tribunal could have so found.

Ground 1 – Tribunal misconstrued and misapplied s.424A of the Act

The Applicant was represented before this Court.
The particulars as expressed in support of ground 1 are entirely misconceived and appear to be predicated on contentions that the Tribunal was obliged to seek further information from the Applicant about claims the Applicant made that it did not accept.
At the hearing the Applicant’s legal representative, Mr El-Hanania, was entirely unable to identify the information that he contended was used by the Tribunal as a part of the reason for affirming the decision under review.
The Applicant’s legal representative submitted that because the Tribunal had regard to two statements made by the Applicant, one in support of his protection visa application and one in support of his review application before the Tribunal, and that the difference in those statements was used by the Tribunal as part of the reason for affirming the decision under review. The Applicant’s legal representative stated that in the first statement the Applicant confined his claims of persecution to the extortion perpetrated upon him by the Syrian Army, whereas, in the second statement, he said for the first time that it was because he was an LF spy.
Whilst the Tribunal rejected the Applicant’s contention that he was an LF spy, no part of its reasons was based on any inconsistency with the Applicant’s statement in support of his primary application. The Tribunal made it very clear that its conclusion that the claim about being an LF spy was a recent fabrication because such a claim was made only days before the hearing, in circumstances where they had been almost 18 months from the filing by the Applicant of his review application. The recency of the claim was a fact and arose from information given by the Applicant to the Tribunal for the purposes of his review. Accordingly, such information is excluded from the obligations imposed by s.424A(1) of the Act by operation of s.424A(3)(b) of the Act.
As stated by Allsop J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [216]:
“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 reasons of the Tribunal which involves “information” does not conclude the question whether it was (and, in the relevant 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 a part of the reason). Having thus ascertained the reason 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 relevant 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 may differ.”

When one analyses this Tribunal decision in order to understand the reason for the ultimate conclusion of lack of satisfaction of the existence of protection obligations, the conclusion is based on the adverse credit findings made in respect of the Applicant’s claim of being an LF spy, arising solely from the timing of that claim.
In the circumstances the Tribunal considered the Applicant’s claims of persecution based on religious reasons and for reason of any political opinion or imputed political opinion.
The Tribunal did not accept the evidence of the Applicant that would found the political persecution because it did not accept that he was an LF spy.
In relation to the religious persecution, the evidence upon which the Applicant relied being the ripping from his neck of a cross and the stamping of it on the ground occurred during the commission of the criminal activity of extortion and was not motivated by the Applicant’s religion. The Tribunal accepted independent country information that indicated that Christianity was not a reason that the Applicant may face treatment amounting to persecution in Lebanon. The Tribunal particularly noted that there were many active and committed Christians throughout Lebanese society. Independent information that is not about the Applicant and is just about a class of persons of which the Applicant is a member is information that is excluded from the obligations imposed by s.424A(1) of the Act by operation of s.424A(3)(a) of the Act (VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16]).
Those are findings of fact that were open to the Tribunal on the evidence and material before it and for which it gave reasons.
There was no information used by the Tribunal as a part of the reason for affirming the decision under review that was not otherwise excluded by virtue of s.424A(3).
Accordingly ground 1 is not made out.

Ground 2 – The Tribunal’s finding as to the credibility of the Applicant’s claim was not supported by any probative evidence and was so unreasonable that no reasonable Tribunal could have so found

There are no particulars provided in respect of this ground either, in the amended application, or, in the Applicant’s legal advisor’s written submissions. Further, at the hearing of this matter the Applicant’s legal representative merely reiterated the submissions he had made in relation to ground 1 and in fact conceded that to a large extent the complaint referred to in ground 2 was addressed in ground 1.
For the reasons I have referred to above in these reasons the Tribunal’s findings as to the credibility of the Applicant were open to it on the evidence and material before it.
In the circumstances, ground 2 must fail.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 13 September 2006