SZGZT v Minister for Immigration
[2006] FMCA 672
•19 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZT v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 672 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 474, 483A Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), s.8 |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 El Merhabi v Minister for Immigration [2000] FCA 42 |
| Applicant: | SZGZT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2259 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 4 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2006 |
REPRESENTATION
| Advocate for the Applicant: | Applicant appeared in person with the assistance of an Arabic interpreter |
| Counsel for the Respondents: | Ms Kaur-Bains |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2259 of 2005
| SZGZT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 19 August 2005, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 July 1998, affirming the decision of the delegate of the first respondent made on 28 June 1997, refusing to grant the applicant a Protection visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGZT”.
The respondents’ solicitors, by an amended response filed in Court on 23 November 2005, sought orders that the application be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that the proceedings are an abuse of process. The Minister’s application was heard on 14 December 2005 and dismissed in a judgment handed down on 27 January 2006: SZGZT v Minister for Immigration [2006] FMCA 45. The applicant’s application was set down for final hearing on 4 April 2006 and costs were reserved.
When the original application in this Court was filed, the applicant was in Villawood Immigration Detention Centre. He has subsequently been granted a bridging visa and is released from detention.
Background
The relevant background material in respect to the applicant is set out in the written submissions prepared on behalf of the respondents by
Ms Kaur-Bains:
2.The applicant is a citizen of Lebanon. He arrived in Australia on 5 June 1996. On 20 March 1997 the applicant lodged a valid application for a protection (class XA) visa. On 28 June 1997 a delegate of the first respondent refused to grant the protection visa. On 29 July 1997 the applicant applied for review to the RRT.
3.The applicant attended the hearing before the Tribunal with an adviser.
4.The applicant is a Muslim. He claimed that he fears going back to Lebanon because of his involvement in the Arab Democratic Party (“ADP”). The applicant claimed that the ADP had threatened him because he refused to undertake certain activities for them, namely, stealing cars that belong to important people in Tripoli so that car bombs could be installed in them.. These requests and refusals were during 1987 and 1988. At that time the applicant was a member of the ADP.
5.The applicant claimed that when he understood what the ADP was about he did not like them any more and left the country, destroying his ADP membership. The applicant claimed he went to work in Jordan for the next four years. The applicant said that he had to return to Lebanon in 1992 because his father was ill. The applicant alleged that on his return the ADP contacted him. The applicant tried to avoid the ADP but he was always in fear. The applicant claimed the last time he as approached by the ADP was in February 1996. The ADP asked the applicant to steal a certain person’s car. The applicant claims that he is at particular risk of retribution from the ADP on his return to Lebanon, as he knew a number of the party’s secrets, particularly in relation to the identity of those who carried out assignations such as car-bombings.
6.The applicant also believes that he will not be able to seek protection from the Lebanese Government if he returns.
Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons are contained
Ms Kaur-Bains’ submissions:
7.The Tribunal found the applicant was not a credible witness. However, the Tribunal accepted the applicant was a member of the ADP during 1987 and 1988 and contributed to the party in a minor way. The Tribunal found the applicant might have been asked to commit illegal acts during this period of his membership, but found that he did not, going to Jordan instead. The Tribunal accepted the applicant returned to Lebanon in 1992. T he Tribunal did not accept the applicant’s claims after 1992 for the following reasons:
a) The Tribunal fond that the ADP was a recognised political party. Therefore, it was implausible that such a party would insist on criminal activities being performed by someone who was clearly unwilling and unable to do them;
b) Given the applicant’s claimed avoidance of the ADP it was implausible that he would have any knowledge of party secrets that could make him vulnerable to retribution;
c) It was implausible that a car accident involving his younger brother which occurred a year after the applicant left Lebanon could be seen to be a threat by the ADP against the applicant;
d) The Tribunal found the applicant was not of any interest to the Lebanese authorities for his involvement in the activities of the ADP given the applicant’s claims that he had spent his time avoiding such involvement.
8.The Tribunal also found the applicant had remained in his home district from 1992 to 1996 and there was no claim that any harm had befallen him, let alone amounting to persecution. The Tribunal was satisfied that the chance of harm befalling the applicant in the reasonably foreseeable future was remote.
Application for review of the tribunal’s decision
On 19 August 2005, the applicant filed an application for review under s.39B of the Judiciary Act. On 11 November 2005, the applicant filed an amended application which contained the following grounds:
1.That a breach of the rules of natural justice occurred in connection with the making of the decision and in connection with the failure to invite me to pick up or collect my decision as I did not receive it personally.
2.The Tribunal failed to put adverse material for my comment and failed to verify the medical references obtained.
3.The Tribunal failed in fully understanding my circumstances and failed to understand the problems and persecution I suffered while in Lebanon and such failure is an error of law because the Tribunal did not have sufficient information before it at the time for the decision and undermined my high profile as a target for harm in Lebanon.
On 28 February 2006, the applicant filed a further amended application, which contained the following grounds:
1.The Tribunal committed jurisdictional error of law in that it failed to take into account information that it was obliged to take into account pursuant to s.424 of the Migration Act, being
a) country information contained in the green book and report of Human Rights Organisation, p.60;
b) Evidence supplied by applicant was not seriously considered.
2.The Tribunal committed jurisdictional error of law in that it took into consideration material adverse to the interest of the applicant without disclosing that material to him and giving him the opportunity to respond to it.
3.The Tribunal failed to interpret the term persecution and prosecution and the decision reached by the Tribunal is totally unreasonable.
Reasons
The applicant appeared as a self-represented litigant with the aid of an Arabic interpreter. On 28 February 2006, the applicant filed an affidavit affirmed by him on 24 February 2006. The applicant relied on that affidavit in support of his application. The first four paragraphs of the affidavit set out the applicant’s background material as well as his appearance before the Tribunal. In the fifth paragraph of the affidavit the applicant referred to the following finding of the delegate in her decision recorded under the heading ‘Reasons’ (Court Book (“CB”) 39):
…I accept that he was a member of the Arab party led by Ali Youssef Eid from 1988 to 1996. I am also willing to accept that the applicant may hold a subjective fear in relation to the party if he returns to Lebanon and does not do what they want him to do. However, I am not satisfied that the applicant’s fears if he returns to Lebanon are well founded.
In the sixth paragraph of the affidavit the applicant referred me to file N1054 of 1998, which was a decision of Burchett J, El Merhabi v Minister for Immigration [2000] FCA 42.This was to demonstrate the seriousness of the behaviour of Syrians and their allies in Tripoli. The applicant requests the Court to consider both the delegate’s and the Tribunal’s decisions as unreasonable as they overlooked the applicant’s fear of persecution as being well-founded.
The seventh paragraph of that affidavit, referred to the part of the Tribunal decision where the presiding member suggested that the applicant should move to Beirut rather than remaining in Akar, given that the ADP is a Tripoli-based organisation (CB 66). The applicant stated that because there are Syrian ADP members in Beirut, he would similarly be at risk there. He also felt that the Tribunal had “overlooked” why he had not relocated to Beirut.
In the eighth paragraph, the applicant referred to an incident in which he alleged to the Tribunal that he was beaten by a Lebanese policeman whom he knew and who had also been a member of the ADP. In his affidavit, the applicant drew attention to the fact that the Tribunal remained unclear over the issue of whether the beating was because the policeman thought the applicant was an ADP member, or because he was not. The applicant complains that the Tribunal had not asked questions to clarify any indecision. The applicant also referred to a car accident involving the applicant’s brother, complaining that the Tribunal did not properly consider medical and other evidence by the applicant (CB 54 to 60). Finally, the applicant claims that the Tribunal did not fully appreciate the persecution that he faced.
When the applicant was invited to make oral submissions in support of his application, he made a brief statement in respect of his situation in Lebanon and the difficulties he faced because of political issues and disturbances in that country. He had initially joined the ADP because he believed that it was a peaceful organisation with a peaceful objective. This unfortunately was not the reality.
Ms Kaur-Bains submitted that this application for judicial review was lodged on 19 August 2005 and that no previous judicial review application had been made. Item 8(2)(b)(ii) of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) applies to this application. Consequently, the applicant is entitled to invoke the jurisdiction of the Federal Magistrates Court under s.483A of the Act and must demonstrate jurisdictional error to succeed: SZDLR v Minister for Immigration [2005] FCA 773 at [32] per Branson J. The Tribunal decision was made on 20 July 1998. The application for judicial review in this Court was lodged on 19 August 2005 and the relevant law that applies is the current law. The applicant has to demonstrate jurisdictional error to succeed.
Section 424 was introduced by the Migration Legislation Amendment Act (No.1) 1998 (Cth) and commenced operation on 1 June 1999. As the decision in this matter was made on 20 July 1998, the Tribunal was not required to have regard to the provisions of s.424. I note that before 1 June 1999, there existed a s.424, however that section has been repealed and has nothing to do with the claim being made by the applicant. The applicant’s claim is made in respect of the operation of the new s.424 that became effective after 1 June 1999. The first ground raised by the applicant in his further amended application is that the Tribunal failed to take into account information it was obliged to consider pursuant to s.424 of the Act, and refers to country information that was provided by the applicant at the hearing before the Tribunal (CB 60). I accept the submission of Ms Kaur-Bains that it is a matter for the Tribunal whether or not to accept evidence supplied by the applicant, including country information. The first ground of the further amended application discloses no error.
The second ground of the further amended application claims that the Tribunal made a jurisdictional error by taking into consideration material adverse to the applicant without disclosing that material to him and giving him the opportunity to respond. This claim is also raised under s.424A. However, as I have discussed above, that section has no application to this case and there is no requirement for any written notice to be provided to the applicant in the form suggested under this ground.
Prior to the introduction of s.424A, the Tribunal was required to comply with the common law requirements of procedural fairness. The applicant states in his affidavit:
3.Neither the Department nor the Refugee Review Tribunal gave me the opportunity to comment on any adverse material contained in my green book, pages 40, 41, 42 and 68, 72-90.
Ms Kaur-Bains indicated that Court Book 40 to 42 contains the delegate’s decision. Court Book 68 contains country information in the Tribunal decision under the heading ‘Independent evidence’. That information relates to the inception of the ADP in 1981, the fact that it is based in Tripoli and also that its leader was re-elected in 1992 as a deputy member of parliament for Tripoli. This in effect confirms that the ADP was a known political party. That material was put to the applicant in the following way at CB 66:
The Tribunal then questioned the motive of a party which appears to be preventing a respectable political faith pursuing an incompetent person to commit a criminal act.
The Tribunal made following finding (CB 71):
The Tribunal is satisfied that the ADP is currently functioning as a political party with parliamentary representation.
The Tribunal then found that it was not plausible that such a party would insist on criminal activities being performed by someone clearly unwilling and unable to do them. I accept that the adverse material was put to the applicant. The applicant has not put any evidence before me, that he would have put any evidence before the Tribunal, which would have made a difference to the Tribunal’s ultimate decision.
The remaining adverse material referred to by the applicant in his affidavit (that of CB 72 to 90) does not appear to form any part of the Tribunal’s reasons.
The third ground of the further amended application claims that the Tribunal failed to interpret the term “persecution” and that the decision reached was totally unreasonable. Ms Kaur-Bains submits that the Tribunal clearly understood the meaning of the term “persecution” as it is used in the Refugees Convention. I note that the Tribunal did set out the relevant details of the Convention in its reasons (CB 63). The Tribunal found that even if it accepted that the ADP was interested in the applicant (which it did not accept), the claims about possible harm amounted to threats for non-compliance or retribution, and as such were not Convention-related. On a fair reading of the Tribunal’s reasons, it found that the threats that had occurred were not Convention-related because they were criminally motivated. In any event, that finding did not affect the Tribunal’s ultimate decision, which was based on the Tribunal’s finding that it did not accept the applicant’s claims after 1992. The applicant also asserts that the decision reached by the Tribunal was unreasonable. No particulars are provided. Ms Kaur-Bains submits that the Tribunal decision is based on the findings it made which were open to it to make on the evidence and discloses no error.
There is a delay issue between the Tribunal decision of 20 July 1998 and the applicant filing the current application in this Court on
19 August 2005. In the applicant’s affidavit he states:
10.I did not personally receive the decision and reasons for decision dated 20 July 1998. At that time I appointed a Consultant whose name appears on Response to Hearing offer (green book page 52).
No other explanation has been provided by the applicant to explain or justify this period of delay.
The applicant previously filed an amended application dated
11 November 2005. Ms Kaur-Bains assisted the Court by making oral submissions in respect of the issues raised in that document. The first part of the first ground refers to a breach of the rules of natural justice that the applicant claimed occurred in connection with the making of the decision and in connection with the failure to invite the applicant to collect the decision from the Tribunal and the fact that he did not receive it personally. This claim appears to overlap with the issues raised in the second ground of the further amended application and I will deal with them as the same claim. Ms Kaur-Bains submits, and I accept her submission, that this ground does not give rise to jurisdictional error. However it may be relevant to the issue of delay.
The second ground of the amended application of 11 November 2005 states:
The Tribunal failed to put adverse material for my comment and failed to verify the medical references obtained.
This appears to echo issues raised in the further amended application and which I have already considered above.
The applicant submitted two letters to the Tribunal regarding an accident which involved his brother (CB 57 to 58). The Tribunal, from the medical references, accepted that the brother was badly injured in a car accident (CB 69). Ms Kaur-Bains submits that the applicant’s claim that the Tribunal failed to verify the medical references obtained is somewhat nonsensical because the Tribunal did accept that the brother was in fact badly injured in a car accident. What the Tribunal did find was another issue (CB 69 to 70):
The Tribunal is not satisfied that anything the Applicant has said, nor any documentation he has supplied, links the brother’s road accident with any threat to the Applicant… It is implausible that a car accident involving his younger brother which occurred a year after the Applicant left Lebanon could be seen to be a threat by the ADP against the Applicant.
This finding had no relevance to that in respect of the medical certificates tendered by the applicant or the manner in which the Tribunal dealt with them.
In the third ground of the amended application, the applicant claims that the Tribunal failed to fully understand his circumstances, problems and persecution he suffered while in Lebanon. It was submitted that this ground overlapped with the third ground of the further amended application. This seems to indicate that the applicant did not fully understand the term “persecution” as used in the Refugees Convention. I am satisfied that this ground does not raise an issue of jurisdictional error on the part of the Tribunal.
Ms Kaur-Bains expressed her concern over the fourth ground of the applicant’s affidavit, which had not been included as a ground in either the amended or the further amended application. As the applicant is self-represented, Ms Kaur-Bains sought to make submissions in respect of this issue on the basis that it could amount to a ground of judicial review if the applicant were legally represented. I granted leave to the applicant to have the fourth paragraph of his affidavit admitted as a ground of review and added to his further amended application. That paragraph states:
The Refugee Review Tribunal ignored the Syrians influence and the seriousness of my position and why relocation was not possible for me.
Ms Kaur-Bains submitted that relocation formed no part of the Tribunal’s reasons in the sense that the Tribunal did not accept the applicant’s claim after 1992. Further, the alternate basis for its reasons appear in its decision at CB 70.5:
Even if the Tribunal accepted that the ADP was interested in the Applicant, the claims about possible harm amount to threats for non-compliance or for retribution, and as such are not Convention-related.
I accept the submission that relocation was not a basis on which the Tribunal’s reasons turned.
Ms Kaur-Bains further submits that the seventh and eighth paragraphs of the applicant’s affidavit could also be interpreted as possible grounds for review, although they were not formally submitted as such. However both these issues had been addressed in the amended or the further amended application.
Conclusion
The applicant appeared at the hearing as a self-represented litigant. At a previous interlocutory hearing he had been assisted by a person acting as a Mackenzie friend. At this hearing that person was not present. The appearance of a self-represented litigant places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Counsel for the respondents assisted the Court with written submissions which were supplemented by comprehensive oral submissions in respect of the amended application, the further amended application and the contents of the affidavit filed by the applicant. Issues arose from all three documents. Although it was apparent the applicant did not comprehend the significance of the content of those documents, or their relevant status in these proceedings. I am satisfied that none of the grounds identified in any of those documents can be sustained. Neither is it apparent that any other grounds for review exist which suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicants pay the first respondents costs of and incidental to the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 12 May 2006
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