SZHWV v Minister for Immigration
[2007] FMCA 2097
•20 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHWV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2097 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – impermissible merits review – no failure on the part of the Tribunal to address claims – Tribunal’s findings open to it – choice and use of independent country information – mere typographical errors not material to disposition of the application for review – non in personam country information – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.91R(1)(b), 36(2), 424A, 426 |
| SZFJU v Minister for Immigration and Citizenship [2007] FCA 1461 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 SZGPZ v Minister for Immigration and Multicultural Affairs[2006] FCA 683 MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCA 1095 Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53 Saha v Minister for Immigration and Multicultural Affairs [2001] FCA 520 Abebe v The Commonwealth (1999) 197 CLR 510 MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 160 CLR 24 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142 |
| Applicant: | SZHWV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3729 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 11 October 2007 |
| Date of Last Submission: | 11 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The reference to the first respondent be amended to read “Minister for “Immigration and Citizenship”.
The application filed on 19 December 2005, and amended on 25 May 2006, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3729 of 2005
| SZHWV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to the Migration Act 1958 (Cth) (“the Act”) on 19 December 2005, and amended on 25 May 2006, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 21 October 2005 and handed down on 10 November 2005, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The first respondent has filed a bundle of relevant documents in this matter (Court Book (“CB”)) from which the following background can be discerned. The applicant is a citizen of Lebanon who arrived in Australia on 10 June 2004 (CB 14) and applied for a protection visa on 9 March 2005 (CB 1 to CB 46, with annexures). On 8 April 2005, a delegate of the respondent Minister refused to grant a protection visa to him (CB 47 to CB 56). On 9 May 2005, the applicant sought review of that decision. (The application is reproduced at CB 57 to CB 60.) The applicant was represented before the Tribunal by a registered migration agent (CB 61 to CB 62). The applicant appeared before the Tribunal and gave evidence on 9 September 2005. The Tribunal’s account of what occurred is set out at CB 91.8 to CB 96.3.
Applicant’s claims to protection
The applicant’s claims to protection arise out of his claim to have been an active member and supporter of the Lebanese Forces (“LF”), and that he feared harm from Hezbollah and other Muslim militia. He also feared harm at the hands of the Lebanese Army as a result of his activities as a soldier in the Lebanese Army, and for his assistance (imputed) to the LF. The applicant further claimed that as a Christian, he feared harm from Muslim activists, in particular the Hezbollah, who were against Christians.
The Tribunal
The Tribunal comprehensively addressed each aspect of the applicant’s claims.
The Tribunal accepted that the applicant was a Christian and a member of, and supporter of, the LF. It also accepted his assertions that although he had ambitions within the LF, he did not occupy any position or have any role within that organisation (CB 99.8). The Tribunal also accepted that the applicant had attended rallies and demonstrations as part of the LF, and that on one occasion while he was undertaking military service (with the Lebanese Army) he was detained and charged in a military court and sentenced to one week corrective imprisonment. Further, it accepted that following this, his activities were monitored for a period. While it concluded on the basis of his evidence that he had contravened orders while attending a demonstration, there was no evidence that he had been dealt with in a discriminatory way because of his religion as a Christian or his membership of the LF (CB 99.10 to CB 100.1). It found that these actions did not amount to serious harm for the purposes of s.91R(1)(b).
The Tribunal also accepted that on occasion the applicant and his colleagues came to the attention of the authorities, and even though the authorities were overzealous in their treatment of these “youths”, and they were questioned because of their apparent support of the Lebanese Forces, but again found this treatment described by the applicant did not amount to “serious harm” (CB 100.3 to CB 100.5).
It also considered the applicant’s claims that he feared harm from Hezbollah because of his activities in support of the LF but found: “events to which he referred were to acts of lawlessness and thuggery on both sides at large scale demonstration and rallies”, and that while it accepted that in some cases this could amount to persecution for a Convention reason, there was no evidence that the applicant was subjected to serious harm amounting to persecution on any of the occasions that he described (CB 100.5 to CB 100.7).
In any event, the Tribunal was satisfied on the basis of the independent evidence available to it that the protection of the (Lebanese) State would be accessible and available to the applicant (CB 100.7).
The Tribunal concluded both on the basis of the applicant’s evidence and independent country information before it, that it was remote that the applicant would be targeted by members of Hezbollah for reason of his political opinion or membership of the LF (CB 100.9). While the applicant claimed that he feared harm for these reasons from other Muslim militia, the Tribunal found he had not suffered harm in the past from any such group and that the chance of future harm from such groups was remote (CB 100.10).
It further found that there was no evidence that the applicant had been harmed or targeted for harm by Hezbollah or any other Muslim militia group for reason of his religion as a Christian (CB 101.1).
While the Tribunal noted that the applicant had said that he would remain involved in the LF in Lebanon and aspired to a greater role in that organisation, it accepted that the applicant would remain a member and supporter and that as such, the chance was remote that he would be targeted for serious harm in Lebanon in the future (CB 101.3).
The Tribunal noted that there had been isolated incidents of violence against some prominent LF leaders, but that there was no evidence that there was any policy of harassment of such people. It noted that the applicant aspired to a leadership role and it accepted that he was “dedicated to the Lebanese Forces”. In all, the Tribunal concluded that the chance would be remote that he would suffer serious harm amounting to persecution because of the role he occupies within the Lebanese Forces in Lebanon (CB 101.5). The Tribunal also noted the withdrawal of Syrian troops from Lebanon and found the applicant’s fear of harm from Syrian forces because of his membership of the LF or by reason of his religion as a Christian was not well-founded (CB 101.8).
In all, having considered the applicant’s claims as it said, individually and cumulatively, the Tribunal found that there was not a real chance he would be persecuted for any Convention reason should he return to Lebanon, that he did not have a well-founded fear of persecution and did not satisfy the criteria set out in s.36(2). It therefore affirmed the decision not to grant a protection visa.
I should just note that I understood the Tribunal’s references to “no evidence” as being no evidence beyond the evidence the applicant gave it or insufficient evidence such as to make a finding positive to the applicant. (See SZFJU v Minister for Immigration and Citizenship [2007] FCA 1461 at [10], per Branson J.)
Hearing before the Court
At the hearing before the Court, the applicant appeared in person. He was assisted by an interpreter in the Arabic language. Mr G Johnson appeared for the first respondent.
By way of amended application filed on 25 May 2006, the applicant put forward the following grounds:
“1.The Tribunal erred in law in underestimating the circumstances and actions taken against the applicant as directed at him for a convention reason. The RRT failed to exercise its jurisdiction by not addressing the applicant’s case insofar as a committed and active member of the Lebanese Forces and failed to accept that his detention and the harm he suffered is because of his support for the Lebanese Forces.
2.The Tribunal was under obligation to determine that the applicant was at risk of persecution should he return to Lebanon and as he was persecuted before his departure the authorities who detained him and interrogated him would be still interested in him the Tribunal finding in the decision clearly accepted that the applicant was interrogated and detained and held for seven days as a result of being a member of the Lebanese Forces for 17 years the Tribunal erred in law by relying on country information which do not apply to the applicant himself.
3.The Tribunal erred in law in stating that the treatment described by the applicant does not amount to serious harm and also that the persecution and actions against the applicant do not amount to serious harm for the purposes of s.91R(1)(b).
4.The Tribunal misunderstood the aspiration aimed by the applicant to a leadership role in the Lebanese Forces even though the Tribunal accepted that he is dedicated to the Lebanese Forces.
5.In the decision the Tribunal seems to have committed factual error such as on p.4 stating that the applicant came to Australia in June 1994.
6.The Tribunal accepted, as per record of transcript as well as the decision, that I was imprisoned, bashed, blindfolded and interrogated and yet denied the applicant to be considered as facing real chance of persecution.
7.The Tribunal failed to comply with the mandatory requirement of the Migration Act 1958 in that the applicant was not provided with the independent country information which was listed in the decision for my comment.
Particulars
1.The procedures that were required by the Migration Act to be observed in connection with the making of the decision were not observed.
2.The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the dated information without any investigation.
3.The Tribunal failed to take a relevant consideration into account in exercising its power to determine the applicant as a refugee.
4.The Tribunal’s decision was unjust and was made without the taking into account the full gravity of the applicant’s circumstances and consequences of the claim.
5.The decision by the Tribunal is not justifiable by the evidence used in the decision.”
The applicant also sought to put before the Court a transcript of the hearing before the Tribunal, which he filed in the Registry on 25 May 2006, but which is not provided to the Court by way of any affidavit attesting to its provenance.
At the hearing before the Court, the applicant made a long submission which for the most part reiterated his claims to protection, and took issue with the Tribunal’s findings that, notwithstanding that it had accepted some of what the applicant had said, it still ultimately found against him. Items raised by the applicant in particular were:
1)That he is a Maronite (Christian), and that Maronites are persecuted in Lebanon. That he had been detained and humiliated because he was a member of the LF and that he was against the Lebanese Government and the Syrians.
2)The Tribunal had accepted that he was imprisoned and beaten but still found that he was not a refugee.
3)He invited the Court to look at his claims to protection.
4)He took issue with the Tribunal’s findings (as set out) at CB 100 that it was not convinced that torture which he had claimed was because of his relationship to the LF.
5)The Tribunal was wrong in its understanding and application of the relevant UN Convention because he was known to have been with the LF since he was 17 years of age.
6)The Tribunal found that he was committed to the LF but still found that this was not within the Convention.
7)That the Tribunal “admitted that he had been imprisoned but was not convinced that persecution was according to Convention criteria”. The applicant could not see how the Tribunal arrived at this conclusion because he is a member of the LF.
8)He took issue with the Tribunal’s finding that there was no proof that he was personally wanted by the authorities.
9)The Tribunal had “admitted” that he had suffered torture but it did not admit that this was serious harm.
10)The applicant asked the question as to what guarantee there was that if he went back to Lebanon that he would not suffer harm and torture and would be detained as he had been in the past.
11)That he had joined the LF when he was 17 years old and that there was substantial evidence that he was with the LF.
12)That with reference to the transcript (page 2) that his brother-in-law took an oath “to be a witness” before the Tribunal but was not invited to give evidence, and in this regard the applicant had no idea that his migration agent had advised the Tribunal that no one would be giving evidence on his behalf.
I have set out the applicant’s submissions in some detail to emphasise the Court’s concerns with those in the community who persist in assisting applicants in preparing or submitting cases (albeit even for the best of motives), but who clearly fail to understand that this Court cannot engage in merits review of an applicant’s claims.
The applicant advised the Court that he had received assistance from a number of people in preparing for the matter before the Court, including assistance from Mr Toufic Laba Sakis, who is often cited as having helped unrepresented applicants in matters before this Court. The applicant’s grounds and his complaints put before the Court at the hearing to a large extent misunderstand that this Court cannot engage in merits review.
Even if Mr Laba Sakis has not been paid for his assistance (and there is nothing to suggest that this is the case now) the applicant may care to refer him to the provisions of Part 8B of the Act. Nonetheless, given that the applicant appeared unrepresented before the Court, I considered each of the grounds in the application putting whatever advantage may be gleaned for the applicant from what he expressed at the hearing. I also took into account, to the extent possible, those parts of the transcript of the Tribunal hearing to which the applicant referred the Court.
Ground One – Tribunal underestimated the applicant’s circumstances
Ground one in the amended application asserts that the Tribunal underestimated the applicant’s circumstances and the “actions taken against” him, and the Tribunal failed to address the applicant’s case that he was a committed and active member of the LF. Further that the Tribunal failed to accept that his detention, and the harm that he suffered, was because of his support for the LF. These claims were repeated before the Court.
These claims appear to be particulars to the more general claim of an alleged error of law in that the Tribunal found that the harm directed against him was not for a Convention reason. In the circumstances I cannot see that this complaint rises above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).
First, it should be noted that the Tribunal did consider and accept that the applicant was a member and supporter of the LF (CB 100.3). As such, the Tribunal found, based on country information available to it, that the chance that the applicant would be targeted for serious harm would be remote. Further, the Tribunal did consider the applicant’s claim that he aspired to a leadership role in the LF, and further accepted that he was “dedicated” to the LF (CB101.4). But the Tribunal found, given his role and activities to date, that the chance of serious harm was remote. This finding was also informed by country information available to the Tribunal that while there were isolated incidents of violence against prominent LF leaders, there was no evidence of any policy of harassment (CB 101.4).
In relation to the harm that the applicant said that he suffered arising from his detention, the applicant’s claim in this regard was that he had been detained and charged in a military court of an offence of attending a rally at the time during which he was undertaking military service. The applicant’s claim was that this was because he had attended a demonstration. The Tribunal accepted that the applicant had been sentenced by the military court to one week of “corrective imprisonment”, and that his activities were subsequently monitored for a period. However, the Tribunal found that there was no evidence that he had been dealt with in a discriminatory way as a Christian or “for reason of his membership of the Lebanese Forces”.
The Tribunal reported that the applicant’s evidence before it (and this is confirmed by the applicant’s transcript of the hearing – see page 14, question 100), that he was apprehended and charged and subsequently detained because he had attended a demonstration which was in contravention of the relevant military rules.
In all, I cannot see that the Tribunal failed to address the applicant’s claims in relation to being an active member of the LF, nor did the Tribunal fail to accept that his detention was because of his support for the LF. The Tribunal found positively insofar as these claims are stated. But in one case it found that the chance of serious harm was remote, and in the other that the detention was not because of any discrimination, and that it did not amount to serious harm for the purposes of s.91R(1)(b). These findings were open to the Tribunal on what was before it. I cannot see error in how the Tribunal has dealt with these issues.
Ground Two – Tribunal failed to find that applicant was persecuted
The applicant’s second stated ground asserts that the Tribunal was obliged to find that the applicant had been persecuted by the authorities who had detained him, and that the Tribunal erred in law by relying on country information which did not apply to the applicant himself.
The first aspect of the complaint again really does not rise above a request for impermissible merits review (Wu Shan Liang). The Tribunal was under no such obligation to find for the applicant simply because the applicant asserted that he had been interrogated and detained. Any plain reading of the Tribunal’s decision record reveals that the Tribunal carefully considered each aspect of the applicant’s claim as it related to his being detained because of his membership of the LF. The Tribunal accepted that the applicant had been detained on at least one occasion (CB 99.7). But was not satisfied that this was directed at the applicant for a Convention reason, and found that such action against him did not amount to serious harm for the purpose of s.91R(1)(b) (CB 100.2).
Further, in relation to the applicant’s claims that he had been stopped at checkpoints, the Tribunal accepted that the authorities had been “overzealous” because of the applicant’s “apparent support for the Lebanese Forces”. However it found that the treatment described by the applicant did not amount to serious harm.
These findings were open to the Tribunal on what was before it. I cannot see that any error is demonstrated in these circumstances (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559).
In relation to the applicant’s complaint about the Tribunal’s use and reliance on country information, I agree with the first respondent’s submissions, that the Tribunal was entitled to rely on this country information, and that the relevance of such information to the review, and indeed the weight to be given to it, are matters of fact for the Tribunal (see SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16], per Hely J, NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11], VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [32]).
I should also note that in terms of a fair hearing, the transcript of the Tribunal’s hearing, which the applicant has put before the Court, reveals that the Tribunal specifically raised certain relevant country information with the applicant at the hearing (see page 22, question 154; page 24, question 162; page 25, question 166 ). The transcript reveals that the applicant was given the opportunity to respond to the country information that the Tribunal put to him. I cannot discern error in relation to this ground.
Ground Three – Tribunal erred in failing to find serious harm
The applicant’s third ground alleges that the Tribunal erred in law in finding (“stating”) that the treatment that he described did not amount to serious harm for the purposes of s.91R(1)(b). No particularity is provided by the applicant, nor did he appear to directly address this issue in the context of s.91R(1)(b) when he appeared before the Court.
Nonetheless, what can be inferred to be meant by the “treatment described by the applicant” is firstly the treatment that he claimed to have suffered from the Lebanese Army because of his membership of the LF and his attendance at demonstrations. In this regard, the Tribunal, while excepting that some of the treatment as claimed by the applicant had occurred, found that it was not satisfied that it was directed at the applicant for a Convention reason. Further, that the actions taken against the applicant did not amount to “serious harm for the purposes of s.91R(1)(b)”.
These findings were clearly findings of fact, and an assessment of the relevant degree and the nature of the harm (whether serious or something lesser) and it was for the Tribunal to make (see in particular SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 (“SZBOV”) at [19]). (Note SZBOV cited with approval in SZGPZ v Minister for Immigration and Multicultural Affairs[2006] FCA 683 at [42], per Collier J; see also MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCA 1095 at [85], per Weinberg J, Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53 at [17], per Ryan, Tamberlin and Mansfield JJ.)
In relation to the other “treatment”, the Tribunal similarly found that the treatment described by the applicant in relation to his being stopped at checkpoints because of his support for LF, was also not such as to amount to “serious harm”. This ground also does not succeed.
Ground Four – Tribunal misunderstood applicant’s aspirations to a leadership role with the Lebanese Forces
Ground four complains that the Tribunal misunderstood the applicant’s stated aspiration to a leadership role in the LF. Again, beyond that assertion, the applicant has not explained further why this is the case.
In any event, I cannot see that the Tribunal misunderstood this claim. It clearly understood that he had said that he: “has ambitions within the organisation” (CB 99.6) when recording the applicant’s claims in its decision record. It then dealt with this aspect of the applicant’s claims when it said that it: “accepts that he is dedicated to the LF”. But in circumstances where: “notwithstanding isolated incidents of violence against some prominent Lebanese Forces leaders” (CB 101.4), it found that there was no evidence before it that there was any policy of harassment of LF figures, and that this, combined with the applicant’s role and activities in relation to the LF up to the time of its decision, caused it to conclude that the: “chance is remote that he will suffer serious harm amounting to persecution in the reasonably foreseeable future”. This finding was open to the Tribunal in the circumstances before it. Having accepted that the applicant was dedicated to the LF did not mean that the Tribunal was therefore bound to find that any leadership role to which he may aspire would cause serious harm for him in the future. This ground also does not succeed.
Ground Five – Tribunal committed “factual error”
Ground five asserts that the Tribunal committed “factual error at page 4 of its decision record” (CB 91) when it recorded that the applicant came to Australia in June 1994 (see CB 91 .3). (“He is a hairdresser and he was born and lived in Lebanon before coming to Australia in June 1994 …”).
This was said by the Tribunal to have been taken from the applicant’s protection visa application. Plainly, in this application, the applicant recorded his date of arrival in Australia as “10 June 2004” (see CB 14.4).
I should also note that the Tribunal also appeared to have some further difficulty with the applicant’s date of arrival in Australia because in its account of the hearing before it, it records at CB 91.8: “he said that he came to Australia in October 2004 with the intention of getting married”. The transcript of the hearing provided by the applicant in fact reveals that when the Tribunal examined the applicant’s passport at the hearing (see page 3 of the transcript) the Tribunal stated: “now I see you arrived in Australia 10th June 2004” (see question 11).
While the first instance appears to be no more than a typographical error, the substitution of “1994” for “2004”, the second appears to be incorrect given that the Tribunal had plainly identified at the hearing the date of arrival as “10 June 2004”.
This was in error. However, in all the circumstances, it is plain that this is at most a typographical error in the Tribunal’s decision record. Plainly elsewhere in that record the Tribunal accurately records the applicant’s arrival in Australia (see CB 89.1): “arrived in Australia on 10 June 2004”. Nor is it an error that goes to the exercise of the Tribunal’s jurisdiction.
Even if both could be said to be incorrect factual findings made by the Tribunal (and in the case of the first, I do not believe it to be the case, and in the second it appears to be a mistaken reference in circumstances where the Tribunal elsewhere in its decision record properly recorded the applicant’s correct date of arrival in Australia), clearly, in the circumstances of this case, these are not sufficient on their own to constitute jurisdictional error. In these circumstances there is no error of law, let alone a jurisdictional error in the Tribunal making this type of wrong finding of fact. (See Abebe v The Commonwealth (1999) 197 CLR 510 at [137]. See also, as the Minister submits, MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [28], Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [31], NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [37].)
These errors, even if they were something more than just mere typographical errors, are not errors that go to the exercise of the Tribunal’s decision. In relation to the question that the Tribunal was required to consider, that is, whether there was a well-founded fear of persecution for a Convention reason. Whether the applicant arrived in Australia on 10 June 2004 as correctly noted by the Tribunal in one part, or June 1994, or October 2004 as incorrectly noted by the Tribunal in others, is not material or relevant to the applicant’s claims or the disposition of the application. This complaint also does not succeed.
Ground Six – Tribunal failed to find that the applicant faced a real chance of persecution
In ground six the applicant complains that the Tribunal accepted (and he emphasises that this can be seen in the record of transcript of the hearing) that he had been: “imprisoned, bashed, blindfolded and interrogated and yet denied the applicant to be considered as facing real chance of persecution”. The applicant (or whoever drafted the grounds for him) appears unable to understand that having found that certain treatment had been meted out, and suffered by the applicant, does not of itself mandate that the Tribunal must find that the applicant faces a real chance of persecution if he were to return to his home country. As already stated above, the Tribunal did accept that some treatment of the nature complained of had been suffered by the applicant. But for reasons which it gave, and which were open to it (see above), the Tribunal found that this did not amount to a well-founded fear of persecution as that concept is understood and as it derives from the Refugees Convention, and as applied in Australian law pursuant to s.91R. This ground also does not succeed.
Ground Seven – Tribunal failed to provide independent country information to the applicant for comment
In ground seven the applicant complains that the Tribunal failed to comply with what he describes as: “the mandatory requirement of the Migration Act” in that the applicant was not provided with the independent country information which: “was listed in the decision for my comment”. I understood this to be a complaint that the Tribunal failed in its obligations pursuant to s.424A(1) of the Act.
The country information “listed in the decision” is that referred to by the Tribunal at CB 96.5 to CB 98.8. This information, on what is before the Court now clearly, as the Minister submits, falls within the exception contained in s.424A(3)(a) of the Act (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]) and was therefore exempted from the obligations set out in s.424A(1) of the Act. Nor is the Tribunal required to provide the applicant with the actual text of such country information if that is what the applicant seeks to complain about in this ground. This ground also does not succeed.
Other Considerations
I should just note that in its decision record the Tribunal makes reference to: “the case of the murder of Mr Ramzi Irani” (CB 101.4). Plainly this was a matter raised by the applicant himself at the hearing as the Tribunal itself records (see also page 25 of the transcript, question 165 where the applicant is reported to have said: “Ramsay Ellnari they killed him and he is one of us”).
The Tribunal also noted that the matter was under investigation and that no charges had been laid in relation to this murder. This latter does not appear to have been put to the Tribunal by the applicant. However, bearing in mind what was said by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) about the nature of “information” for the purposes of s.424A (at [17]), I am not satisfied that Mr Irani’s murder being the subject of continuing investigation could be said to be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” such as to enliven the obligations pursuant to s.424A(1).
While this issue needs to be determined in advance of the Tribunal’s “particular reasoning on the facts of the case” (see SZBYR at [17]), the Tribunal’s subsequent reasoning would confirm the view that I have formed in this regard. That is, the Tribunal’s reasoning was that there were isolated incidents of violence against some prominent LF leaders of whom Mr Ramzi Irani was clearly one (see in particular the transcript of the hearing at page 25).
The particulars
The applicant also lists a number of particulars following the grounds in the amended application. Unfortunately, it is not clear to which ground the particulars are said to relate, but appear to be further mere assertions of error on the part of the Tribunal. For the most part they again seek this Court to engage in impermissible merits review (Wu Shan Liang). To the extent that they go beyond this I note the following.
The applicant claims that the Tribunal ignored the merits of his claim (clearly this is not the case with reference to the Tribunal’s decision record and in any event this seeks impermissible merits review).
Further, that it did so “without any investigation”. The applicant does not explain what further investigation should have been undertaken by the Tribunal. I note in any event, as submitted by the first respondent, that there is no general obligation on the Tribunal to investigate an applicant’s claims beyond of course properly addressing and dealing with those claims (see NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [18]-[21]). Nor can I see particular circumstances requiring further investigation.
Nor does the applicant say which “relevant consideration” the Tribunal failed to take into account or failed to consider. Nor can I discern any such failure on the part of the Tribunal in the sense as explained in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 160 CLR 24.
Complaints before the Tribunal
The applicant’s long list of complaints made to the Court in the nature of submissions at the hearing before the Court as set out above, for the large part, seek impermissible merits review (Wu Shan Liang).
Those that may be said to seek to assert something beyond this however, do not assist the applicant in showing jurisdictional error on the part of the Tribunal. Nor did the applicant raise anything further before the Court which could be said to reveal jurisdictional error beyond what has been considered above. In any event I note the following.
The applicant takes issue with the Tribunal’s finding (at CB 100.6) that: “there is no evidence that he was personally targeted on these occasions” when the Tribunal was considering the applicant’s fears of harm from Hezbollah because of his activities in support of the LF. The applicant appears to complain that the Tribunal should have accepted his claims that he feared harm from Hezbollah, and that it was not open to the Tribunal to find that there was no evidence that he was personally wanted by the authorities.
Beyond a claim for merits review, the applicant’s complaint appears to be that the Tribunal did not have any evidence to show that he was not subject to the harm claimed given that it found that he was a member of the LF. He took issue with what he said the Tribunal relied on as being “little or minor” and “not significant”.
First, there is nothing to which the applicant points to show that the Tribunal was wrong in saying there was no evidence (in the sense of course of no evidence beyond the applicant’s own evidence) before it that he was personally targeted on occasions when violence erupted at rallies and demonstrations beyond that he was: “part of random acts of violence perpetrated by both sides”.
Further, the Tribunal found that adequate state protection was available to the applicant in any event in these circumstances, and concluded that, based on the applicant’s own evidence, and on independent country information before it, that the chance was remote that he would be targeted by Hezbollah for reason of his political opinion or membership of the LF or that he would be similarly targeted by other Muslim militia.
The applicant’s complaint appears to seek some inversion of the approach required of the Tribunal by claiming that the Tribunal itself was required to provide evidence that the applicant was not, in effect, a “refugee”. The situation is of course one that it is for the applicant to provide his claims and evidence in support to the Tribunal, and for the Tribunal to either reach the requisite level of satisfaction that the applicant is a person to whom Australia owes protection or not. In this regard, the statutory regime does not require any gathering of proof by the Tribunal to disprove the applicant’s claims. (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.)
Similarly, the applicant asked the Court as to what “guarantee” could the Tribunal offer that he would not be subjected to harm and torture if he were to go back to Lebanon. Again the applicant by this complaint does not comprehend that the Tribunal does not have to provide any such “guarantee”. Rather the test for the Tribunal is whether it can be satisfied, or not, that the applicant has a well-founded fear of persecution for a Convention reason. Given its finding that he did not was made by the Tribunal in circumstances which were open to it, and in respect of which no procedural failure in coming to this conclusion can be discerned, the applicant’s complaint in this regard is not of assistance to him (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ).
Before the Court the applicant also complained that at page 2 of the transcript it is “revealed” that the Tribunal asked his brother-in-law, who had attended the hearing with him, to take an oath to be a witness. But that notwithstanding this the brother-in-law was not invited to give evidence to the Tribunal. The applicant’s complaint appears to be that having taken the oath to be a witness that the brother-in-law should have then been invited to give evidence.
First, there is nothing before the Court to show that the applicant ever requested the Tribunal that it take evidence from the brother-in-law. In the “Response to Hearing Invitation” form (reproduced at CB 69), in answer to the question as to whether the applicant wanted the Tribunal to take any oral evidence from any witnesses, the answer is “no” (see item 2(c)). The applicant did indicate (item 2(b)) that he wanted “my brother” to come to the hearing with him.
But this was plainly not a request that “the brother” be called as a witness. Nor is there anything else before the Court to show that the applicant otherwise asked the Tribunal to take evidence from the brother or brother-in-law.
Given these circumstances therefore it is somewhat difficult to understand why the Tribunal then felt (see page 2 of the transcript at question five) the need to ask the applicant’s brother-in-law whether he wanted to take an oath, or affirmation, in anticipation of giving evidence.
Nonetheless the Tribunal’s action could be explained on the basis that this was a contingency just in case the brother-in-law or the applicant would seek such an opportunity during the course of the hearing. The Tribunal’s relevant question is clearly expressed as a possibility, not a probability (“may give evidence”, also: “if in fact I call on you to give evidence”).
Nor is there anything further in the transcript to show that the applicant subsequently asked the Tribunal to consider taking evidence from the brother-in-law. In fact, the contrary appears to be the case. At page 26 of the transcript the following is set out:
“Question 170.
[Tribunal Member] Alright well I don’t need to know that information. I’m going to see whether or not your brother-in-law wants to come in to give any evidence for you.
[Applicant]No he’s not here.
Question 171.
[Tribunal Member] He’s not here – has he gone?
[Applicant]Because he is working.”
Plainly, the Tribunal did provide the opportunity for both the applicant, and the brother-in-law to give evidence if this is what was desired. There is nothing in the transcript to show that the applicant or the brother-in-law told the Tribunal that he was under any time constraints such that he would be unavailable once the applicant himself had completed his evidence. Nor is there any indication from the applicant or his brother-in-law that he wished to give evidence before the applicant because of these constraints.
Ultimately however, the Tribunal’s obligation in this regard is governed by s.426 of the Act. The Tribunal did, pursuant to s.426(1), notify the applicant of the opportunity to request of the Tribunal that it take evidence from a witness. However, the applicant did not, pursuant to s.426(1), within seven days, notify the Tribunal in writing that he wanted the Tribunal to obtain oral evidence from the brother-in-law or his brother.
Even further, pursuant to s.426(3), even if the applicant had so notified the Tribunal within the requisite days, in writing, the Tribunal is not required to obtain any such evidence.
The applicant also complained before the Court that he had engaged a solicitor, who was also a registered migration agent to assist him in his application for review (see CB 61). He stated that he did not know that the agent had answered: “no” to the relevant question relating to his desire to have a witness give evidence on his behalf.
First, there is nothing before the Court to show that there was any request in writing to the Tribunal as required by s.426(2) of the Act. Second, to the extent that the applicant implies that there was some admission, or failure, on the part of the agent in this regard in the way he answered the relevant question, then there is no suggestion before the Court that this action was taken in any fraudulent context by the agent, such as to engage what was said by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48] (endorsing what French J said in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142).
In all the circumstances, I cannot see any breach of the Tribunal’s statutory obligations in this regard such as it could be said to amount to jurisdictional error. Nor is there any evidence before the Court of any fraudulent action on the part of the agent (nor really was it asserted by the applicant) such as it could be said that the exercise of the Tribunal’s obligations as set out in Division 4 of Part 7 in this regard could be said to be vitiated by jurisdictional error.
Conclusion
In all, I cannot discern jurisdictional error in the Tribunal’s decision, either from what the applicant has put before the Court by way of application or from what he submitted, nor otherwise. In these circumstances the application is dismissed.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 20 December 2007
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