SZHDI v Minister for Immigration and Citizenship
[2008] FCA 536
•6 March 2008
FEDERAL COURT OF AUSTRALIA
SZHDI v Minister for Immigration & Citizenship [2008] FCA 536
SZHDI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2040 OF 2007
DOWSETT J
6 MARCH 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2040 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHDI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
6 MARCH 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.the appeal be dismissed; and
2.the appellant pay the first respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2040 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHDI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
DOWSETT J
DATE:
6 MARCH 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of Lebanon. He arrived in Australia on 26 October 1994. On 18 April 1995, he applied for a protection visa. That application was based upon an alleged fear of persecution in Lebanon by Lebanese, or possibly Syrian, authorities for reason of his military activity in the years between the mid 1980s and 1994. He claimed that he had been a supporter of the Lebanese forces and its Christian beliefs and that from about 1985, he was involved in collecting information about Syrian Army posts. He subsequently became a supervisor in the region, again involved in collecting information. He acted in that capacity until 1990 when hostilities ended. He claimed that if returned to Lebanon, he would be imprisoned and tortured to reveal secrets associated with his intelligence work. The delegate of the first respondent (the “Minister”) rejected the application. The appellant applied to the Refugee Review Tribunal (the “Tribunal”) for review of that decision. On 23 January 1998, the Tribunal rejected the application. The appellant applied for review of that decision on 19 September 2005. On 21 September 2007, a Federal Magistrate rejected that application. The very significant delays in the prosecution of this matter are attributable to a number of reasons which I will mention briefly after disposing of the substantive issues.
This is an appeal from the Federal Magistrate’s decision refusing to review the Tribunal’s decision. However the notice of appeal alleges no error by the Federal Magistrate. It rather makes assertions about the Tribunal’s conduct of the matter. The best that can be said for it is that the appellant asserts that the Federal Magistrate erred by not upholding his criticisms of the Tribunal. It is not unusual in cases of this kind, where the appellant is unrepresented, to find that the notice of appeal from the Federal Magistrate effectively replicates the grounds of the application before the Federal Magistrate. Such an approach is technically incorrect. The application before the Federal Magistrate depends upon the demonstration of jurisdictional error in the Tribunal. The appeal focuses upon the conduct of the Federal Magistrate. In some cases, the distinction is not as important as in others. In the relevantly rare case where there are significant amounts of evidence before the Federal Magistrate, as was the case here, such a defect in the notice of appeal can cause problems. In any event, I will do as best I can with what I have. Much of the appellant’s complaint about proceedings in the Tribunal focused upon the way in which the proceedings were conducted.
Firstly, the appellant complained that the Tribunal limited the amount of time available to him to present his case. It seems that there was a time constraint of sorts in that the interpreter was obliged to leave by a particular time. In at least one passage in the transcript, the Tribunal appears to have been conscious of the need to accelerate proceedings in order to meet the convenience of the interpreter. There is nothing in the transcript, or at least the version which is before me, which suggests that the appellant expressed any concern about the amount of time available to him.
More importantly, the Tribunal appears to have been at pains to ensure that the witnesses, including the appellant, had an opportunity to state exhaustively whatever they thought was appropriate to the case. My attention has not been drawn to any aspect of the transcript which suggests that witnesses were cut short, save perhaps for areas in which they were dealing with information which was already well known to the Tribunal. Further, the appellant has not sought to identify any information which he would have sought to put before the Tribunal had he had more time. There is no reason to believe that the amount of time devoted to the matter was less than was reasonably needed. The Federal Magistrate considered this matter carefully. I see no reason to doubt the correctness of the conclusion to which he came.
A second criticism was that the Tribunal took evidence from two witnesses, Mr Obeid and Mr Wadih, who were called at the request of the appellant. The appellant complained that their evidence was taken before his. He seems to think that this caused him some disadvantage. It is difficult to understand how it could. It is true that as a matter of practice in courts, a party is usually called before his or her other witnesses. However I do not understand that to be an unfailing practice, except perhaps in criminal trials. I have always understood it to be based upon the fact that it is the party who will have the most comprehensive understanding of the case and therefore the most to contribute by way of evidence. I have also understood the practice to be associated with a desire to avoid adverse comments regarding credibility if some other course is followed. In any event, I see no reason why the Tribunal should have been obliged to take evidence from the appellant before taking it from the other witnesses. I am unpersuaded that there is any reason to believe that the appellant was prejudiced by such a course. As far as I can see, no complaint was made during the Tribunal hearing.
Thirdly, the appellant complained about the appropriateness of the interpreter who was made available to him at the hearing. In the proceedings before the Federal Magistrate, this was a quite focused complaint, alleging misinterpretation of a number of passages in the evidence. It seems that two Arabic speakers considered the oral evidence and identified perceived inaccuracies in the translation. The Federal Magistrate considered these matters with some care and at length. He came to the conclusion that none of them gave any reason to apprehend prejudice to the appellant. The appellant has not sought to demonstrate to me that this finding was incorrect. He has rather complained that he would have preferred to have had an interpreter who was of Lebanese background. As far as can be seen from the transcript this complaint was not made at the hearing. It may be that the appellant would have been better served by a person who spoke Arabic in a way familiar to people of Lebanese background. That falls far short of demonstrating that the appellant was in any way prejudiced by the services of the interpreter who was made available to him.
A number of other complaints were made in the application for review and in the notice of appeal. Most of them focused upon the merits of the Tribunal’s decision, asserting that the Tribunal had not understood the appellant’s case, and that there was something inconsistent in the treatment of the appellant by the Tribunal as compared to the treatment of his two witnesses, Mr Obeid and Mr Wadih who have been recognised as refugees.
The Tribunal understood that the appellant was claiming to fear persecution because of his involvement with the Lebanese forces during the hostilities since 1985. It accepted that the appellant had a fear of persecution in Lebanon but concluded that the fear was not well-founded. This conclusion was based upon country information to the effect that a person of his background was unlikely to face persecution in Lebanon at the relevant time. This view was reinforced by the Tribunal’s conclusion that the appellant had been able to leave Lebanon without difficulty. That view depended to some extent upon the rejection of an aspect of the appellant’s evidence to the effect that he had been assisted in leaving by a relation who was an official in the Lebanese security forces. The Tribunal’s rejection of this evidence was based upon information provided by the Australian Embassy concerning conditions in Lebanon. Based upon its finding that the appellant was able to leave Lebanon without difficulty, the Tribunal rejected his claim that the authorities had been looking for him since his departure and had visited his home in Lebanon for that purpose. I am unable to identify any failure by the Tribunal to take into account the appellant’s personal circumstances to the extent that they were relevant.
It is true that Mr Obeid said that the appellant would be in danger in Lebanon, and that Mr Wadih suggested that people who had been working in his area had left Lebanon for fear of persecution. The Tribunal referred to the evidence of these witnesses, although not in those respects. It referred in its reasons to evidence concerning their association with the appellant. It was not unreasonable that it should have taken that approach, given that Mr Obeid left Lebanon in 1993 and Mr Wadih in 1994. The Tribunal hearing was in early 1998. Perhaps it is unfortunate that the Tribunal did not say a little more about its reasoning process in this regard. However, it is an inescapable inference that the Tribunal preferred the country information to these statements. I see no justification for the assertion that the Tribunal failed to deal properly with the witnesses’ evidence.
There is also a complaint that the country information was not provided to the appellant for comment. The Federal Magistrate dealt with this matter in some detail. He was satisfied that the relevant substance of the material was put to the appellant, although particular sources may not have been. No error is demonstrated in this approach.
Before me, the appellant again complained that there was some inconsistency in the fact that Mr Obeid and Mr Wadih were treated as refugees and he was not. The matters were considered by different tribunals at different times. There seems to have been evidence which suggested that Mr Obeid had been sentenced to death in absentia in Lebanon. It is really not possible to know the basis upon which Mr Obeid and Mr Wadih were treated as refugees or, I hasten to say, to doubt the correctness of the decisions. That says nothing about the appellant’s position. In the end, the appellant has had the benefit of a very careful examination of the matter by the Federal Magistrate. No error has been demonstrated in those reasons.
I previously referred to the substantial delays which have attended this matter. The Federal Magistrate was asked to decline relief, in the event that he was otherwise inclined to grant it, upon the discretionary basis of delay. At least some of the delay was caused by extended litigation attending migration matters generally in which the appellant was involved. However the Federal Magistrate concluded that there was a period of two years and three months, in the total period of over seven years between the decision in the Tribunal and the application for review in the Federal Magistrates Court, which period of two years and three months was not explained. The Federal Magistrate concluded that such a delay would have led him to decline relief had he been otherwise persuaded as to the appellant’s case. It was not necessary for him finally to determine that matter. I agree that an unexplained delay of that duration would, in the circumstances of this case, be a basis for exercising the discretion against the grant of relief, were it otherwise available.
As is almost inevitable in cases of this kind, various other statements were made in submissions by the appellant. They amounted to criticisms of the Tribunal’s decision on the merits. Neither the Federal Magistrates Court nor this Court is empowered to review the decision of the Tribunal on the merits. The appeal must be dismissed. The appellant should pay the first respondent’s costs of the appeal.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 21 April 2008
Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr J Mitchell Solicitor for the First Respondent: DLA Phillips Fox Counsel for the Second Respondent: The Second Respondent did not appear Date of Hearing: 6 March 2008 Date of Judgment: 6 March 2008
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