SZGYC v Minister for Immigration - [2007] FMCA 347

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGYC v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 347

MIGRATION – RRT decision – Libyan of berber ethnicity – claims of persecution disbelieved by Tribunal – no jurisdictional error found.

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

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

Applicant:

SZGYC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2137 of 2005

Judgment of:

Smith FM

Hearing date:

8 March 2007

Delivered at:

Sydney

Delivered on:

8 March 2007

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 application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2137 of 2005

SZGYC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 28 July 2005, in which the applicant seeks orders by way of judicial review under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”), dated 27 May 2005 and handed down on 21 June 2005. The Tribunal affirmed a decision of a delegate, made on 14 December 2004, refusing to grant a protection visa to the applicant.
The Court’s jurisdiction under s.483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth), but is subject to limitations under s.474 of the Migration Act, so that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa.
The applicant arrived in Australia on a student visa in September 2004. On 22 October 2004 a migration agent lodged a protection visa on his behalf. A covering submission from the agent summarised the applicant’s claims to fear persecution if he returned to his country of nationality, Libya.
The applicant referred generally to the situation of people of his race, which he refers to as Amazig, and who speak his language, which he refers to as Amazigi. Other material before the Tribunal identified his ethnic group and language as being within the general category of Berber ethnicity. The applicant claimed:
E.As a race we are persecuted with respect to Education, our culture, or human rights. We are not recognised by the Government. The Government is trying to abolish our race, culture and language.
In relation to his personal history, the agent’s summary of his claims was:
H.My name is a traditionally Amazigi name. This is one of the reasons I have encountered troubles. I was persecuted throughout my school education. I have not even been allowed to speak my language to other Amazigi students.
H.[sic]I was subject to degrading treatment from teachers and other students.
I.During my university days I became vocal requesting my rights. I was suspended from education in 1998 and accused of being racial.
J.Any person identifying with Amazigi is refused a university ID card.
K.During the year I was suspended I spent more time studying my language, history and culture.
L.I became active in trying to promote my race. I organised some meetings. I started to record on cassette Amazigi singing.
M.We were arrested and taken by the Authorities. We were treated badly and tortured. One of the group members lost his right eye as a result of the torture.
N.The Authorities interpreted our actions as anti government movement.
O.In 2001 I visited a sight of historic ruins in Gregin. The ruins were in very poor condition. My friend and I wrote to the Government to point out that the ruins need some attention.
P.We had no response from the government so we collected money from different people and commenced to clean the ruins.
Q.We were arrested and blamed for defacing not only Libyan what is considered international ruins. We were held for 5 days of severe torture. We were accused of trying to convert international ruins into Amazigi ruins – a culture that does not exist.
R.It was very difficult for me to get a job. I was immediately known as an Amazigi because of my name. When I wanted to get a trade licence so that I could work. I was required to go to internal security but I was not able to get a licence. The reasons was that I am not of good character because I was causing racial tensions in Libya. I am not eligible for any trade licence. I was forced to work illegally as a vendor. They also used as an excuse that my brother was in prison for one year in 1996. He was imprisoned without any hearing. He was falsely accused of laundering money.
S.During the last 12 months I have been very active on the Internet promoting my race and looking for solutions to our problems in Libya. I learnt how other Amazigi people had their rights for example in Morocco who have radio, newspaper and organisations.
T.When I went to Belgium I saw some racial minorities who have full rights. I became even more angered with my Government. There I purchased some books about Amazigi culture. Unfortunately they were in French. But I was angered that I could buy books about my culture in a different language and country yet I could not speak my language in my own country.
U.I returned to Libya more angered and determined. I wanted to change the Government’s way of thinking I wanted them to see we had rights. Me and a few friends put up a poster on the wall of Internal Security saying “Live The Amazigi Language, Rights of Amazigi, Representation of Amazigi.”
V.We were arrested and interrogated. During interrogation and under pressure, some of the people told the authorities that I had books about the Amazigi history and against the Libyan regime.
W.Authorities came to my home but I was not there. At this time I had my visa and I was about to travel as soon as I had a flight.
The delegate refused the application after considering general information about the position of Berbers in Libya, which the delegate said: “indicates that the Amazigh people do face a certain level of discrimination within Libya”. The delegate also accepted: “there have clearly been instances where the Libyan authorities have imprisoned members of certain tribes in order to maintain power”. However, the delegate was not satisfied that this applicant had faced “the type of harm he claims”. The delegate pointed to travel by the applicant in 2002 and 2003 which appeared inconsistent with having experienced detention and torture at an earlier time, and the delegate did not believe that the applicant would have risked: “openly promoting his language and culture as he claims to have done”. The delegate pointed to the freedom of the applicant’s travel and the level of education he had achieved, and did not think that this revealed: “discrimination, let alone persecution, for reason of his race”. The delegate also pointed to some delay before leaving the country after getting the visa, and said that he was satisfied that the applicant’s fear of persecution was not well‑founded.
On appeal, the applicant attended a hearing before the Tribunal on 13 May 2005. The Tribunal gave a description of the hearing in its statement of reasons. No transcript is in evidence, and I have no reason not to accept the Tribunal’s description.
The Tribunal said that the applicant corrected some aspects of the claims presented by his agent:
At the hearing before me the Applicant said that there was a mistake in the claims set out in the covering submission from his representative. He said that he had not been present when his friends had put up a poster on the wall of the Internal Security (or when they had written graffiti on the walls of a police station, which is what the Applicant said at the hearing before me they had done). He said that this had been in July 2004. He said that he himself had not been arrested and interrogated at this time. He said that he had been in Tunisia between 16 and 18 August 2004 and when he had returned from Tunisia he had found a letter calling him to the police station. The Applicant said that he had travelled to Tunisia every year. He said that, apart from the mistake he had outlined, everything in the claims set out in the covering submission from his representative was correct.
Later in the hearing, the applicant explained the immediate reason for his deciding to seek refuge in Australia, arising out of his attendance at a meeting of Berbers in Tunisia in September 2004:
The Applicant said that while he had been in Tunisia he had attended the council or committee of Tunisian Berbers. He said a few friends of his who had also attended the council or committee had been arrested after they had returned from Tunisia in September 2004. He said that 35 people had been arrested. He said that his friends had mentioned his name when they had been interrogated and they were still in prison. He said that the authorities had searched his house and they had found some books he had brought from Belgium and some ‘scripts’ about the history of the Berbers. The Applicant said that if he returned to Libya he would be put in prison for three or four years.
The Tribunal questioned the applicant concerning the circumstances of his application for a student visa to come to Australia:
I noted that in support of his application for a student visa the Applicant had produced a licence issued to him for selling of traditional garments at the Al Fatah Tower. The Applicant said that this was his brother’s shop. He said that he had started working for his brother in the middle of 2000 and then in 2001 he had started importing goods from overseas himself. He said that he had started working on his own after they had refused to give him a shop in 2001. The Applicant said that the licence he had produced in support of his application for a student visa was a fake. He said that he had had to produce a fake document in order to get a visa to come to Australia. He said that the situation in Libya was really bad so there had been no other solution. He said that the licence was his brother’s but they had put his own photograph and his name on it with a computer. I asked the Applicant if he understood that the fact that he claimed to have produced a fake document in support of his application for a student visa could suggest to me that he was prepared to lie and to produce fake documents in order to obtain a benefit from the Australian Government. The Applicant said that when he had applied to the Australian Embassy they had wanted this document but he had not had it so he had produced the fake document. He said that some people got a fake visa and came to Australia.
The Tribunal also questioned the applicant about his claimed arrests in 2000 and in 2001, and his fears as to searches of his home after he had left Libya. The Tribunal put to the applicant the concerns which the delegate had referred to, and also general sources of information which suggested that: “expressions of Berber culture did not cause any problems as long as there was no question of Berber activism”. The Tribunal questioned the applicant about his life in Libya and put to the applicant: “there was nothing in the objective evidence to suggest that he had had any problems at all”, including in relation to his trading activities.
At the end of the hearing, a discussion on that matter occurred with the applicant’s representative, who was in attendance:
The Applicant’s representative submitted that the Applicant had never claimed to be poor although she conceded that he had said in his original application, prepared with her assistance, that he had been a ‘street vendor’ which might have borne this connotation. I noted that she had said in her covering submission that the Applicant claimed that he had been forced to work illegally as a street vendor because he had been immediately known as an Amazig on account of his name and he had been refused a trade licence yet it appeared from his evidence that he had not been disadvantaged through not being granted a trade licence. The Applicant’s representative submitted that the Applicant had been forced to work illegally. I noted that he did not appear to have been impeded in his trading activities or in travelling freely. The Applicant’s representative submitted that it had been the Applicant’s family that had been well‑off, not the Applicant himself. I put to her that if he had been assisting in the family business it still suggested that he had not been disadvantaged.
In its statement of reasons, the Tribunal referred to general information about the situation of the Berbers in Libya. This included a report of a fact‑finding mission to Libya in June 2004 under the auspices of the Norwegian Immigration Appeals Board.
Under the heading “Findings and Reasons”, the Tribunal provided reasoning leading to a conclusion which rejected the credibility of the applicant’s account of mistreatment and of Berber activism. The Tribunal said: “I do not accept that he has been prevented or dissuaded from engaging in any form of Berber activism because of the attitude of the Qadhafi regime towards political opposition as referred to above”. The Tribunal accepted that the applicant was a Berber and had met other Berbers in visits to Tunisia. It did not accept that he had been persecuted on account of his ethnicity or actions. It said:
Having regard to the evidence contained in the report of the fact‑finding mission referred to above I do not accept that there is a real chance that the Applicant will suffer discrimination amounting to persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Act for reasons of his race as a Berber if he returns to Libya now or in the reasonably foreseeable future. While I accept that there is no official recognition of the Berber language in Libya I do not accept, having regard once again to the evidence contained in the report of the fact‑finding mission referred to above, that there is a real chance that the Applicant will be persecuted for his involvement in expressions of Berber culture if he returns to Libya now or in the reasonably foreseeable future.
The reasons given by the Tribunal for rejecting the applicant’s credibility in relation to his own history of persecution were several. The first relied upon the applicant’s admission to it at the hearing that he had produced a “fake document” in support of his application for a student visa. The Tribunal said that this admission: “suggests to me that he is prepared to lie and to produce fake documents in order to obtain a benefit from the Australian Government”. The Tribunal suggested that this could not be explained as being caused by a fear of persecution, because: “he claims that his fear of being persecuted only arose after he left Libya in September 2004”, which was after he had applied for his visa in May 2004.
The Tribunal’s rejection of the applicant’s claim to have suffered economic hardship because of his ethnicity was expressed as follows:
I do not accept that the Applicant was forced to work illegally as a street vendor because he was immediately known as an Amazigi because of his name, as the Applicant’s representative said she had been instructed by him in the covering submission accompanying his original application. I find that, as the Applicant said at the hearing before me, after completing a qualification in economics at a private institution he worked in his brother’s shop – for which his brother had a business licence – before setting up business on his own importing goods from overseas which he distributed to other stores in Libya. The Applicant expressly denied that he had been selling in the streets and, as I put to him, it does not appear to me from the objective evidence that he was disadvantaged in any way in terms of his ability to carry on his business and earn his livelihood. I do not accept his claim that he was sometimes interrogated at the airport and had to pay bribes. I find that the Applicant was able to travel freely, as evidenced by the many entries in his passport (which he produced at the hearing before me), and that he was not impeded in any way in carrying on his business.
The Tribunal’s reasons for rejecting his claims to have been involved in Berber activism and to have been arrested, detained and tortured in 2000 and 2001 also relied upon the fact of his unimpeded travel after those years, and country information suggesting the unlikelihood of persecution merely for possessing a Berber name and supporting or expressing its culture. Essentially, the Tribunal did not find the chronology of the applicant’s account to be plausible, and it said:
I consider that the Applicant has fabricated his claims in order to provide a basis for his application for a protection visa. As I put to the Applicant, the objective evidence suggests that he had no problems in Libya at all.
I have considered the Tribunal’s reasoning and its procedures, and consider that no jurisdictional error is apparent. The credibility of the applicant’s history was a matter for the Tribunal to decide. In circumstances where no direct corroboration of his immediate history was provided, I am not satisfied that the Tribunal’s adverse view was not open to it and was not genuinely and rationally arrived at.
The applicant has not been legally represented before me, although he has had a referral for free advice and has had the help of somebody preparing his application. This contains four grounds:
1.The Second Respondent committed jurisdictional error of law by misinterpreting the definition of “persecution” set out in s91R of the Migration Act 1958, and as a result asked itself the wrong question in purporting to determine whether Australia had protection obligations in respect of the Applicant.
2.The Second Respondent doubted the Applicant’s overall credibility after the Applicant claimed that he had produced fraudulent documents to depart his country. The Applicant clearly claimed the purpose was to escape harm.
3.The Second Respondent placed much emphasis on a Norwegian country information report and gave little or no consideration to a number of other independent country information sources quoted.
4.The Second Respondent found the applicant not disadvantaged with respect to business activities despite the fact that the Applicant gave evidence that he was denied a trade licence.
The applicant addressed these grounds in his submissions to me today, although it is apparent and understandable that he was not able to focus his submissions upon possible jurisdictional error. The applicant’s basic complaint was that the Tribunal was wrong in disbelieving him, and that it had given unnecessary emphasis to the false licence which he presented to the Australian Embassy to obtain a student visa. He emphasised to me that he did feel disadvantaged in Libya, and that this was the reason for his seeking residence in Australia.

In relation to the four grounds, I have not been able to identify any legal misapprehension by the Tribunal as to the law it was required to apply. In the absence of particulars under Ground 1, I am unable to give that ground any substance.
In relation to Ground 2, it is clear from the Tribunal’s reasoning that it considered his explanations for the fraudulent document. In my opinion its conclusion, which drew a general concern about his veracity from that incident, was open to it, and I cannot see any legal error affecting that part of its reasoning.
In relation to Ground 3, I consider that this ground only argues with the Tribunal’s assessment of the general situation in Libya. However, the task of reviewing the sources of general information available to the Tribunal was its task and not the task of the Court, and I am not persuaded that the Tribunal has unreasonably or irrationally relied upon any general information.
Ground 4 criticises the Tribunal’s treatment of the fact, which the Tribunal does not appear to dispute, that the applicant had been unable to obtain a business licence of his own. However, in my opinion the Tribunal has probably taken that claim into account when reaching its general conclusion that the applicant had not been shown to have been: “disadvantaged in any way in terms of his ability to carry on his business and earn his livelihood”. In view of the Tribunal’s description of the exchange with the applicant’s representative at the hearing, I would not be persuaded that the absence of any expressed discussion of the significance of not having his own business licence was overlooked by the Tribunal when arriving at its conclusion.
I have considered all the points made by the applicant in his application and in his submissions to me today, but I am not persuaded that the Tribunal’s decision was affected by jurisdictional error. I must therefore dismiss his application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 22 March 2007