SZHYS v Minister for Immigration
[2006] FMCA 757
•18 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 757 |
| MIGRATION – Visa - protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Israel claiming a fear of persecution for reason of political opinion – allegation of bias on the part of the Tribunal – no evidence of bias – no evidence of failure to consider integer of the applicant’s claim – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A |
| Mehenni vMinister for Immigration and Multicultural and Indigenous Affairs (1999) 164 ALR 192 Abebe v The Commonwealth (1999) 197 CLR 510 Minister for Immigration and Multicultural and Indigenous Affairs v Al-Shamry [2001] FCA 919 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 SZEEU & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 NABE vMinister for Immigration and Multicultural and Indigenous AffairsNo.2 (2004) 219 ALR 27 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 SBBS vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 SBBF vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 SCAA vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 NAAP vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 at [125] |
| Applicant: | SZHYS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3831 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 May 2006 |
| Date of last submission: | 18 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Mason |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs
The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $4,500.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3831 of 2005
| SZHYS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was made on 28th November and handed down on 6th December 2005.
The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
Background
The Applicant is a citizen of Israel who was born in Argentina but left that country at the age of 9. He has no connection with his country of birth and has not retained citizenship of that country.
He arrived in Australia on 9th February 2005 and applied for a protection visa. After it was refused on 13th August 2005 the Applicant sought a review of that decision from the Refugee Review Tribunal. The Applicant lodged his application for review on 7th September 2005 and accompanied that application with a number of press clippings and items downloaded from the Internet. The Tribunal invited the Applicant to attend a hearing on Friday 25th November 2005.
The Applicant attended that hearing and was provided with the services of a Hebrew interpreter. The Applicant told the Court today that he elected not to use the services of the interpreter on that occasion but spoke to the Tribunal in English. The Applicant gave evidence with the - or the Applicant addressed the Court today with the assistance of a Hebrew interpreter but at times spoke in English, of which he has a fair command.
The Applicant seeks a protection visa on the basis that he claims a fear of persecution, on the basis of his political opinion. He is now 38 years of age and has lived in Israel since he was 9. He completed a period of compulsory full-time military service as is required of citizens of that country but from - on a regular basis is required to serve for a period of 60 days a year on full-time duties as a reservist. The Applicant has formed the view that service in the occupied territories of Palestine is morally wrong and does not wish to perform military service in that area anymore.
He has formed political views which have persuaded him that the policy of the Government of Israel, as far as those territories are concerned, is wrong and does not believe that he should be required to serve there again. He told the Tribunal that he had no problems with serving Israel in general but objects specifically to service in the occupied territories. The Applicant had been involved in political demonstrations in support of people who are opposed to the Government's policies.
At times he had suffered criticism or abuse or worse from extremist members from the community and has claimed that he has attracted the attention of the secret service and that people have in fact visited his home or visited his parents' home to inquire about his activities or whereabouts. The Applicant told the Tribunal that he was not necessarily pro-Arab but he did not feel that it was morally right for army reservists to undertake the work they were required to do in those territories.
The tribunal’s findings and reasons
The Tribunal set out its findings and reasons on pp.112 through to 117 of the Court Book. The Tribunal was satisfied that the Applicant was a citizen of Israel and did so on the basis of the available information, including the provision of an Israeli passport. The Tribunal noted the Applicant's claimed fear of persecution on the basis of his political views and what the Tribunal described as future performance of national military service requirements.
The Tribunal noted that there were fundamental differences between some of the claims made in the Applicant's written documents that were provided and his oral testimony but took the view that it was satisfied,
that any discrepancies in the information provided are due to the inadequacies in the preparation of the APV rather than a possible poor reflection on the applicant's credibility.
That passage appears at p.112.
The Tribunal accepted that the Applicant had completed compulsory military service in 1993 and had served as a reservist on many occasions since then. The Tribunal, although doubting a claim by the Applicant that he had been followed, accepted that as plausible that after certain demonstrations that he had been followed and that one occasion police had gone to his home.
The Tribunal accepts that it was plausible that the Applicant might be questioned by the authorities if he had returned to Israel but was satisfied that the Applicant's actual political views or potentially imputed pro-Palestinian views were not the essential and significant reasons for any questioning.
Turning to the Applicant's claim relating to military service the Tribunal noted that the laws relating to military service are normally regarded as a law of general application. The Tribunal went on to comment, at p.114 and p.115 of the Court Book that
compulsory military service whilst generally being regarded as a non-discriminatory law of general application will be dependent however on the evidence of each case.
And quoting from the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status for particular guidance - in particular the Tribunal quoted from the Handbook which said
A person is clearly not a refugee if his only reason for desertion or draft evasion is his dislike of military service or fear of combat. He may however be a refugee is his desertion or evasion of military service is concomitant with other relative motives for leaving or remaining outside his country or if he otherwise has reasons within the meaning of the definition "the fear of persecution."
The Tribunal also noted that there are however also cases where the necessity to perform military service may be the sole ground for a claim to refugee status.
Only when a person can show the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions or to valid reasons of conscience.
The Court looked at the decision of the Federal Court in Mehenni vMinister for Immigration and Multicultural and Indigenous Affairs (1999) 164 ALR 192 and other authorities and made the statement at p.115 of the Court Book that the Federal Court has fairly consistently held that liability for conscription even of conscientious objectors will not of itself found a conviction of claim. The Tribunal at p.116 found that it was not satisfied that the Applicant's views had resulted in his suffering serious harm as contemplated by the Convention and the Tribunal was not satisfied that if the Applicant were to perform reservist duties and there was anything in his profile that would lead to him suffering serious harm amounting to persecution as contemplated by the Convention.
The Tribunal was not satisfied that there was a real chance that the Applicant would be ill-treated by the Israeli authorities for Convention reasons and was therefore satisfied that there was no Convention‑related reason as to why he could not return to Israel.
Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution as contemplated by the Convention and affirmed the decision not to grant a protection visa.
The application for judicial review
The Applicant has sought review of that decision and filed an application and an affidavit in support on 23rd December 2005. The Applicant sets out grounds in his application which are essentially similar to statements made in his accompanying affidavit. The Applicant has obtained legal advice from a lawyer on the Legal Advice Panel for people seeking to review decisions of the Refugee Review Tribunal.
The Applicant did not file any Amended Application nor was there any obligation on him to do so although on 19th April when this matter was originally listed for hearing, the Applicant sought and obtained an adjournment until today so that the Panel legal adviser could obtain the tapes of the Tribunal hearing. I am informed that the solicitors for the Respondent Minister made tapes available to the lawyer concerned on that same day.
Turning now to the grounds in the application, the Applicant claimed that the Tribunal did not deal, on the basis of the facts provided by the Applicant, and gave no credence to the fact that the Applicant had little or no protection from any official body in Israel and had been attacked by both military and police in Israel, including being followed on several occasions. The Applicant had claimed that the Tribunal did not note that the Applicant's persecution was feared because of his membership or perceived membership of a particular social group.
He also said that the Tribunal did not take into account that owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group and political opinion that the Applicant is outside his country of his nationality and is unable and owing to such fear is unwilling to avail himself of the protection of his country, that is, Israel. And (2), as a result of such events, he is unable or owing to such fear is unwilling to return to Israel.
The Applicant also claimed that the Presiding Member of the Tribunal (presumably Muslim) acted in a manner that appeared not to be in favour of Jewish Israelis being a refugee and the application claims that as a member of the Islam faith possibly a Muslim, she should not have presided over a Jewish Applicant. The Applicant also claimed the Department of Immigration and Multicultural and Indigenous Affairs erred in its decision, ignoring specific claims that he had made, and subsequent information clarifying the previous details.
As far as the fifth ground is concerned, a claim of an error by the Department of Immigration and Multicultural Affairs, as it is now is called, is not a ground for review of a decision of the Refugee Review Tribunal. Any errors made by the Department are the matters which are the province of the Refugee Review Tribunal for consideration and the Court does not exercise any separate power to review a decision of the delegate.
The Applicant told the Court that the Tribunal Member appeared to him to be very negative. He said the Tribunal had no basis to make the conclusions that the Tribunal made about his service in the Israeli Army and the Tribunal Member stated that there were problems in Lebanon and he believed that she may be from Lebanon. The Applicant said that the Tribunal Member's conclusions did not have a solid base insofar as his military service obligation was concerned. He told the Court that it was possible for reservists who did not wish to serve in the occupied territories to seek exemption from service there for medical reasons but he himself was unwilling to do that because it was not the truth.
He had served in the army both on his full-time service and previous reserve service including service in the territories before. Now that he has reached the age of 38 he does not feel that he has the reserve duty. He told the Court he was not the property of the state, whilst he himself would not care if he went to jail for his refusal to serve he expressed a concern for his parents and told the Court that his older brother had died in Lebanon in 1985.
He was of the view that the Tribunal had not accepted his main point about his service in the army. He said he had been in a combat unit and that they did not want to release him from service in the occupied territories for the real reasons. They wanted to release him on medical grounds but he wanted to be released for political reasons. He said that the occupation is no good and it was clear that he felt that the policy was a bad one for Israel. He said that his choices were to return to his unit, to go to jail, or to be released from service on medical grounds.
He said that he had been betrayed by the system although not by the state, that they should take into account the situation of his parents. Every time he had been to the occupied territories his parents suffered. He said that he had told this Tribunal that had not been taken into consideration. The Respondent Minister, Ms Mason of counsel, told the Court that the Applicant's claim that he is concerned about his parents had been raised at the hearing and dealt with by the Tribunal at p.110 of the Court Book.
Ms Mason also spoke of the Applicant's claims that the Tribunal had misconstrued his claim about military service and referred the Court to the decision of the Tribunal at pp.114 and 115 of the Court Book and pointed out that the Tribunal had found that the requirement for compulsory military service in whatever form it be is a law of general application in Israel and as such does not of itself found a basis for persecution for a Convention reason.
As far as the question of bias was concerned it was submitted that it was of no relevance whether the Tribunal Member was or was not a Muslim or a member of any other faith and that the question of bias or a failure to act in good faith was a serious allegation and needs to be clearly proved. The Applicant told the Court in reply that some people seek a medical exemption for service in the occupied territories and others say that they are religious to avoid service but he felt that if he took one of those lines that he would have to live with a lie, to live with a reason that was not true.
Turning to various grounds, I would make it clear that a hearing of judicial review is not a hearing where the Court reconsiders the factual situation. It is not a further merits review, to use the legal term, and that normally, unless there is some question of bias, the Court does not consider the factual findings made by the Tribunal because factual findings are a matter for the Tribunal and not of the Court. It is for the Court to ascertain whether the Tribunal has made an error of law or failed to provide the Applicant with procedural fairness or dealt with the Applicant in a way that does not allow the Applicant natural justice.
The Respondent has submitted that there is nothing on the face of the Tribunal in this decision to indicate that the Tribunal did not consider the Applicant's factual claims. The fact that the Tribunal preferred the oral evidence given by the Applicant rather than claims in the Applicant's application for a protection visa is entirely a matter for the Tribunal. The question of what weight the Tribunal gives to one aspect of evidence is a matter for the Tribunal and is not a matter that gives rise to jurisdictional error. I'm referred to the decision of High Court of Australia in Abebe v The Commonwealth (1999) 197 CLR 510 at [197].
It was also submitted that in the absence of a s.424A notification the Tribunal acted entirely properly and would not have been entitled to have regard to protection visa claims having regard to the requirements of s.424A of the Act as interpreted by Minister for Immigration and Multicultural and Indigenous Affairs v Al-Shamry [2001] FCA 919, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, and the more recent decision of SZEEU & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. In short it was submitted and I believe correctly that the first ground is merely an attempt to cavil with the merits of the Tribunal decision, which is an impermissible exercise as an attempted merits review.
Whilst I am not of the view that the Tribunal's decision refers to the specific concern that the Applicant has for his parents in respect of any future service that he has or may undertake in the occupied territories, I am not of the view that that of itself established jurisdictional error. The Tribunal referred to the Applicant's concern for his parents at p.112 of the Court Book in respect of a visit to the Applicant's home asking questions about him. The Applicant told the Court today that his concerns related to fears by his parents for his safety and the sad memory that they would have of the death of his brother in Lebanon in 1985.
The Applicant said that he may have made an error in not relying on the services of the interpreter at the Tribunal hearing in order to make that point but if he made that claim to the Tribunal the difficulties that he would face are these. First, that no transcript of the Tribunal hearing has been provided to show that that claim was submitted. It was not considered. Second, that even if it were the case that would not establish a fear of persecution for a Convention reason. It could well establish a strong compassionate ground, but compassionate grounds and Convention reasons are not necessarily the same thing. The, in my view, ground number (1) as set out in the Applicant's claim cannot succeed.
As to the Applicant's claim that the Tribunal did not consider that the Applicant feared persecution because of his membership or perceived membership of a social group, I'm not of the view that that has been established. As to the Applicant's claim that this was not considered, I am of the view the Tribunal did consider the Applicant's claims. As far as his political views were concerned the Tribunal appears to have done so on the basis of the Applicant's actual and perceived political view and there were no other claims made to the Tribunal by Applicant other than his claims regarding military service or his political views regarding the occupied territories and policies of the Government of Israel. There is no other claim that was raised squarely on the material before the Tribunal and I am referred to the decision of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 219 ALR 27.
The third ground which recites the definition of "persecution" or more correctly the Convention-based "persecution," and an allegation that the Tribunal did not take that into account. It appears to me that this is no more than a cavilling at the factual findings made by the Tribunal. It appears to be a merits-based ground, to use counsel for the Respondent's claim, and the Tribunal set out the relevant definition and the tests for persecution and then went on to apply them nearing the decision.
As far as the question of bias is concerned, the Applicant made it clear to the Court that he wished to apologise for any suggestion of racism. His claims for bias were based on the perceived attitude of the Tribunal member at the hearing and on the Tribunal's findings. There are numerous authorities on the question of bias or lack of good faith on the part of the Tribunal. An allegation of bias must be distinctly made and clearly proved. (See Minister for Immigration and Multicultural and Indigenous Affairs v Gia (2001) 205 CLR 507 at [69]).
The Federal Court has also set out a number of propositions on lack of bona fides. In SBBS vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43]-[48] their Honours said:
First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved.
In addition, the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
I refer also to SBBF vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] and also SCAA vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] and NAAP vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 at [125]. There is not on my reading any evidence of bias in the Tribunal decision. I'm mindful however that the applicant also said that it was the negative attitude of the Tribunal member and this was an attitude which he gleaned from attending the hearing.
Again there is no transcript of the Tribunal hearing before the Court. There is no example of negativity in attitude other than the Tribunal decision which to my mind contains no evidence of bias. It does indeed, contain a number of concessions in favour of the Applicant's account and indeed, as I referred earlier at p.112 of the Court Book, the Tribunal said,
Having observed the Applicant and having discussed with him his claims at the hearing, the Tribunal is satisfied that any discrepancies in the information provided are due to inadequacies in the preparation of the application for a protection visa, rather than a possible poor reflection on the Applicant's credibility.
This is not a case where the Tribunal has found an applicant to be an unsatisfactory witness or a witness of poor credibility or an unbelievable person. Rather the Tribunal has assessed the Applicant's claims but has not been satisfied that they amount to well-founded fear of persecution on the basis of a Convention reason, in this case political opinion. It is of course a requirement for an administrative decision‑maker to be satisfied that the Applicant meets the criteria for a visa. If the Tribunal is not so satisfied then the Tribunal has no option but to refuse the visa.
I am also mindful of the fact that the Applicant is not legally represented at the hearing, although he has had some legal advice through the Panel scheme. I have read through the decision thoroughly myself and I am not able to discern any jurisdictional error and it has not been claimed by the applicant, or has not been brought to my attention by the counsel for the Respondent. In my view there is no jurisdictional error apparent on the face of the decision and I am not satisfied that the Tribunal has made a jurisdictional error in arriving at the decision to confirm the decision of the delegate.
As there is no jurisdictional error the decision is a privative clause decision under the provisions of s.474 Migration Act and is entitled therefore to the protection of that section. The application therefore must be dismissed.
There is an application for costs on the part of the Minister. The Applicant has been unsuccessful in his claim and in my view there is nothing to depart from the rule or from the practice that costs follow the event. The costs sought would amount to $4,500.00 which I consider to be appropriate. The Applicant says however that he is not working and does not have funds to pay those costs.
In this jurisdiction that is not of itself a ground for not making an order for costs, but it is certainly a matter which I can take into account in deciding whether or not I should allow time to pay. If I do not allow time to pay then those costs will be payable within 28 days. In my view it is a matter that I should take into account and I accept the fact that the Applicant not being in employment would not have the funds to meet the sum of $4,500.00 within 28 days.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 25 May 2006
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