SZIFE v Minister for Immigration
[2007] FMCA 64
•15 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIFE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 64 |
| MIGRATION – RRT decision – Palestinian Christian claiming persecution by Muslim gang – claims not accepted by Tribunal – no jurisdictional error found. |
| Migration Act 1958 (Cth), s.476 |
| Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 |
| Applicant: | SZIFE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 279 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 22 November 2006 |
| Date for last submission: | 15 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr S. Lloyd |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 279 of 2006
| SZIFE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 27 January 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 December 2005 and handed down on
5 January 2006. The Tribunal affirmed a decision of a delegate made on 6 September 2005 which refused to grant a protection visa to the applicant.
When handing down his decision, the same member of the Tribunal also handed down a decision in an application by the applicant’s younger brother. They had presented concurrent visa applications relying upon events involving them both, and had attended consecutive hearings before the Tribunal. Their separate applications to this Court were brought into my docket and were heard together by consent of all parties. Both brothers filed identical applications in this Court, and neither of them had anything to say by way of written or oral submissions. I shall, however, give separate judgments in each matter, since the Tribunal addressed the matters separately, and its statements of reasons have some differences.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) if the Tribunal’s decision is a “privative clause decision”. It is such a decision unless I am satisfied that it was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.
The applicant is a young Palestinian man, who arrived in Australia in July 2005 with his younger brother. His application for a protection visa was lodged on 11 August 2005. In it, he claimed to fear that he would be killed by members of a gang of Muslims called “Alaqsa Martyr Troops” or “Brigade”. He said that it
use to come to my house and threaten me and my family with guns and knives and blame us for things we did not do just to start trouble and they have called me many times and threaten to kill me.
He said that
a year ago I arrived home from work to find this gang threatening my family they had already stabbed and bashed my (younger brother). They almost killed him and when they seen me they caught me and stabbed me in the back. They hit my father it took him one month to recover.
He said that in January 2005 they “stole everything” that was in a car parts shop which he owned, and demanded payment from his insurance company. He was threatened when he refused to take the parts back because they had been damaged. He said “In Palestine there is no police to protect you from gangs and thiefs”.
He also said:
One time my (younger brother) and I were in Church and we heard people fighting outside the Church there were some Muslim boy hassling some girls from our village and were swearing at Jesus and our church, a fight started, the next day the same Muslim boys with all their friends had come to our house and accused (the younger brother) of bashing one of the boys. I told them that (the younger brother) and I did not get into the fight the day before. They pulled out their guns and put them to our heads they hit us with the guns they threatened to keep abusing me and if you stay in the country they were going to kill me and my (younger brother), that is why I had to leave my country to come here to Australia.
No greater details of these events nor supporting material appears to have been given to the Department.
A delegate refused a protection visa on 6 September 2005, on the grounds:
I do not accept that the essential and significant reason for the Muslims targeting the applicant is for one or more of the five Convention reasons or specifically the applicant’s religion.
He said that “the action of the Muslim boys in stealing his car parts is simply a matter of common crime”, and
the applicant does not appear to be suggesting that his fear of harm has anything to do with his religion, Catholicism. The fact that he and his brother happened to be at church appears to be incidental to the matter.
The applicant did not present any written material to the Tribunal, but attended a hearing on 11 November 2005, held immediately after the younger brother’s hearing. I received Auscript transcripts of their hearings into evidence before me, and rejected an informal transcript tendered by the applicant because it was not authenticated and contained argumentative material.
The transcript shows that the Tribunal properly attempted to elicit and test the brothers’ claims. The transcript shows some areas of conflict and uncertainty in this applicant’s evidence, which, in my opinion, left it open to the Tribunal to reject parts of it. At one point (page 11 of the transcript), the Tribunal expressly indicated to the applicant that it had difficulty believing his claims to have been threatened with death, and I consider that the applicant was sufficiently alerted to the possibility that the Tribunal might disbelieve key elements in his claims.
The applicant gave an account of encounters with the Muslim gang which differed somewhat from his written claim. He said that there had been only one episode of violence, which had occurred after an incident at the village Church on Christmas Eve 2004. He did not attend church but his younger brother was there. Two Muslims from the neighbouring village “came to the church and they start to insult Mary, the Virgin and they try to – they start to insult Jesus as well and all Christians. After this blasphemy young people came and beat them down, bashed them”.
The next day a group came to his home and “caught my brother … they want to kill him basically”. He said:
Of course I was there, me, my dad, my mother and my younger brothers as well. They hit me here, member, as you see and I’ve got four stitches in my chin here and they hit my dad on the butt and still today he’s suffering and they fire their arms into our house and we had to fled, escape inside the house and close the gate, the iron gate and they were in huge numbers of people attacking us.
So we had to leave home, me and my brother but they’re still following us, they want to kill us and the government cannot protect us at all from this Martyr Brigade, Alaxa Martyr Brigade as they name themselves. They allege that they are the Alaxa Martyr Brigade who help people do this and that but they are basically thieves who steal goods and stock.
He claimed that the family received further threats that the applicant and his brother would be killed, and that they therefore left home and stayed illegally with a relation in Jerusalem until coming to Australia, where they also had relatives.
A further encounter with the gang occurred at the end of January 2005, when they broke into the applicant’s spare parts shop in a Palestinian town and stole the stock. The applicant and his younger brother had been set up in this shop by their father in July or August 2004. However, they ceased to attend at the shop after a few months, due to family concerns for their safety in that town. They insured the stock, following an attempted break-in in November. Following the successful theft in January, the thieves negotiated with the insurance company which was forced to pay ransom. The applicant and his father were taken to inspect the stolen stock, but refused to take it back because it was damaged. The outcome of their litigation against the insurance company was uncertain. Further threats of violence were made against them by the thieves at that time.
The Tribunal invited the applicant to comment upon information which it took from a lengthy US State Department 2005 report on “Israel and the Occupied Territories”. In particular, it referred him to two sentences which ultimately provided significant elements in its reasoning: “There generally are amicable relations between Christians and Muslims, although tensions exist”, and “Muslim-Christian tension has been minimal during this reporting period, and the few instances of Muslim-Christian violence seem related to social or inter-family conflicts rather than religious disputes”. The applicant said that this did not “reflect the situation on the ground 100 per cent like my problem”, and “the most people who suffers and discriminated against are the Christian people”.
In its statement of reasons, the Tribunal carefully narrated the contents of the applicant’s visa application and his oral evidence, at greater length than I have extracted above. Under the heading “Findings and Reasons”, it referred to authority which allows a Tribunal to reject an applicant’s testimony on credibility grounds, and to reject claims which are inconsistent with general country information. It then addressed the applicant’s claims concerning the Christmas incident, the theft from the applicant’s shop, and the general situation of the applicant as a Christian in Palestine.
The Tribunal’s reasoning on the Christmas incident
This was addressed in several paragraphs which have three components.
The first component is a paragraph containing findings which have some ambiguity as to how much of the applicant’s evidence was accepted to be true:
I prefer the Applicant’s evidence at the hearing before me to the evidence contained in his original application, to the extent of any inconsistency. I accept that the Applicant intended to describe only one incident in which he and his brother and other members of his family were attacked, rather than two, as would appear from his original application. The Applicant’s evidence is corroborated by his brother, who came to Australia with him and applied for a protection visa at the same time. However, as I put to the Applicant in the course of the hearing before me, I do not accept that he and his brother would have been able to escape if, as he claims, the people who came to his family’s home were armed with guns and knives and wanted to kill him and his brother.
The second component in two paragraphs compared the applicant’s claims with the passages taken from the US State Department report. The Tribunal said:
the picture which the Applicant drew of the situation of the Christian minority in Palestine is not in accordance with the independent evidence available to me.
It said:
I prefer the independent evidence … to the extent of any inconsistency because I consider that the independent evidence is more likely to be reliable.
It said:
I accept on the basis of the independent evidence that Muslim-Christian tension in the Occupied Territories is minimal and that the few instances of Muslim-Christian violence have related to social or inter-family conflicts rather than religious disputes.
The third component is a paragraph which drew conclusions as to the Christmas incident:
Having regard to the independent evidence and to my view of the credibility of the Applicant’s own account, I do not accept that the Applicant and his brother and other members of his family were attacked at their home as the Applicant and his brother have described, nor that the Applicant and his brother had to take refuge in their aunt’s house in Jerusalem because they feared that they would be killed if they returned to their home in (his village). I accept that the Applicant has at some time received in injury to his chin requiring stitches but I do not accept his account of how he came to receive that injury or the reason why he was injured in this way. I do not accept that the Applicant genuinely fears that he will be killed or otherwise persecuted for reasons of his religion if he returns to his home in (his village) nor do I accept, having regard to the independent evidence, that there is a real chance that the Applicant will be persecuted for reasons of his religion if he returns to his home in (his village) now or in the reasonably foreseeable future.
I found some parts of the Tribunal’s reasoning about the Christmas incident obscure, and initially was concerned that it was open to a reading which might show jurisdictional error. In particular, the findings in the first component might appear to accept the truth of the applicant’s account of the Christmas incident “corroborated by his brother”, apart from doubts whether the Muslim attackers actually intended to kill the applicant and his brother, as distinct from inflicting other serious assaults and firing shots in their vicinity. Consistent with this reading, the findings in the third component might appear to arrive at a conclusion which accepted that the applicant did have fears, and that there was a real chance of serious assaults from a Muslim gang arising from the incident, but held that these fears and the real chance were not “for reasons of his religion” and lacked a Convention nexus because, in terms of the independent information, the violence “related to social or inter-family conflicts rather than religious disputes”.
If the Tribunal did reason in this way, it appeared to me arguable for the applicant that the Tribunal was misled by its reliance on the sentence taken from the US report. It may have misconceived the causal nexus of the Convention definition between religious opinions and feared harm, by requiring that a feared harm of “Muslim-Christian violence” must occur in a context of “religious dispute” and not just “social conflict”. Such an error might account for the Tribunal’s ultimate conclusion, which would otherwise appear to be inexplicable. If the Tribunal did accept that the applicant was the target for revenge attack arising from the Church incident as described, it is difficult to see how it could have excluded a requisite Convention reason for the fear, since the applicant’s religious affiliation essentially explained the original and continuing reason for his claimed targeting.
This argument was not identified by the applicant in the documents he filed, and I allowed counsel for the Minister a further opportunity to address it in written submissions filed after the hearing. Assisted by his submissions, I have concluded that the argument favouring the applicant proceeds upon a misreading of the Tribunal’s process of reasoning. This should, in my opinion, be understood as being based upon an entire rejection of the claimed Christmas incident, including all threats and fears of violence arising from his religious associations.
The key finding which shows this reasoning is found in the Tribunal’s conclusion:
I do not accept that the Applicant and his brother and other members of his family were attacked at their home as the Applicant and his brother have described, nor that the Applicant and his brother had to take refuge in their aunt’s house in Jerusalem because they feared that they would be killed if they returned to their home in (his village).
The Tribunal has then refused to accept that the applicant’s chin injury occurred in the claimed attack by Muslims, and has refused to accept that he has any actual fear of harm as a Christian. The significance of the Tribunal’s opening general discussion of authorities on “making an adverse credibility assessment in a refugee case” thus becomes clearer.
Giving these key findings their literal and unqualified effect, the Tribunal’s findings in its first component paragraph should therefore be understood as doing no more than identifying the refugee claims which it was required to address. That is, the Tribunal identified the applicant’s refugee claims as those made at the hearing, rather than any inconsistent claims in the original protection visa application. Its reference to them being “corroborated by his brother” does not imply acceptance of them as true. The Tribunal’s doubts as to the internal plausibility of the claim that the attackers wished to kill the applicant, also takes a broader significance. This doubt can be seen to have provided an important reason for finding that no attack as described actually took place.
Reading the Tribunal’s reasons in this context, the use it made of the US State Department report does not reflect adversely upon its understanding of the causal relationships required by the Convention definition. Rather, the Tribunal has relied upon the country information as suggesting no more than that Muslim-Christian violence such as was claimed by the applicant was “minimal”, so as to diminish the likelihood of it actually occurring. The Tribunal has drawn an inference from the Report that the violence described by the applicant was unlikely to have occurred, and has “preferred” that inference as a further reason for disbelieving the applicant’s entire history of the Christmas incident and subsequent threats.
So analysed, I do not consider that the Tribunal’s reasoning concerning the Christmas incident reveals any jurisdictional error. It proceeds upon findings on the applicant’s credibility and on the inferences to be drawn from general country information which were made within the Tribunal’s jurisdiction, and any doubts as to their merits cannot be remedied by this Court. Reading the evidence for myself, it may have been open to the Tribunal to have decided that the applicant and his brother exaggerated rather than invented the Christmas incident and subsequent threats, but I do not consider that the failure of the Tribunal to discuss this hypothesis reveals any jurisdictional error.
The spare parts theft incident
The Tribunal’s reasoning was:
I accept that the stock from the Applicant’s Mercedes spare parts business was stolen but I do not accept that the essential and significant reason for this theft was the religion of the Applicant and his family or any other Convention reason (as required by paragraph 91R(1)(a) of the Act). I consider that, as the Applicant said, the thieves targeted the business because they needed the money. I do not accept that the Applicant and his family were denied a remedy for reasons of their religion. The Applicant confirmed at the hearing before me that they had hired a lawyer to sue the insurance company although he said that he did not know if the claim had gone to court. I accept that the relevant Convention nexus can be found in the failure of the State to protect an applicant from persecution by non-State agents where the failure is for one or more of the five Convention reasons. However in this context it is not sufficient to show maladministration, incompetence or ineptitude by the police or that the failure is due to a shortage of resources. What is required is State toleration or condonation of the persecution in question and systematic discriminatory implementation of the law: see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, per Gleeson CJ at [26] and per McHugh and Gummow JJ at [84] to [87].
I do not accept on the evidence before me that the Palestinian police discriminate against the Christian community by withholding protection in relation to crimes committed against Christians by non-State actors. As stated above, I prefer the independent evidence in relation to the situation of the Christian minority in the Occupied Territories which indicates that, while there have been isolated instances in which the Palestinian Authority has failed to protect the Christian minority from criminal gangs in the Bethlehem area, Muslim-Christian tension has been minimal during the past year and that the few instances of Muslim-Christian violence have been related to social or inter-family conflicts rather than religious disputes (US State Department, International Religious Freedom Report 2005 in relation to Israel and the Occupied Territories - Report on the Occupied Territories). I do not accept on the evidence before me that the Palestinian Authority condones the persecution of Christians or discriminates against them in terms of the protection it provides.
The Tribunal’s reasoning in this section shows compression similar to its earlier reasoning. I raised a concern with the Minister’s counsel about the general propositions made in the last three sentences of the first paragraph in the above extract. In particular, the propositions are too demanding if they are read as excluding situations where a fear of persecution can be found to be well-founded because a State is unable to afford an adequate level of protection against Convention-related persecution, even where that inability is not the result of “toleration or condonation of the persecution in question and systematic discriminatory implementation of the law”. This proposition, taken by the Tribunal from Khawar, deals only with the circumstances where the absence of State protection may establish a Convention nexus for a fear of persecution by non-State perpetrators motivated for non-Convention reasons. I was therefore concerned that the Tribunal might have overlooked what was said in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [21], [24] and [26].
However, I accept that the Tribunal did not intend to suggest that its suggested test of a failure of State protection was required in all cases before a fear of Convention-related persecution could be found to be well-founded. The key to understanding its reasoning is its opening factual conclusion: “I do not accept that the essential and significant reason for this theft was the religion of the Applicant and his family or any other Convention reason”. Implicitly, the Tribunal has rejected the applicant’s suggestion that his religious association, and the earlier Christmas incident, motivated the Muslim gang to target his shop. It therefore found that the harms suffered by the applicant were not inflicted for a reason covered by the Convention definition read with s.91R(1)(a).
On this finding, it was not necessary for the Tribunal to address and make findings on whether the applicant received inadequate protection from official Palestinian authorities according to tests referred to in Respondents S152/2003. It was sufficient for the Tribunal to confine its discussion of State protection to the issue of whether any absence of adequate protection would, itself, reveal a Convention nexus to the harms suffered. The Tribunal’s findings excluding condonation or discrimination in relation to harms inflicted on Christians in Palestine by non-State agents were, in my opinion, open to it and fully answered this remaining issue.
The Tribunal’s concluding findings
The Tribunal’s findings concluded by addressing two further elements in the applicant’s evidence:
The Applicant referred in the course of the hearing before me to the security situation in (town) which he said had meant that his family had been scared for his safety if he went to the shop but I do not accept that one or more of the five Convention reasons is the essential and significant reason for any fears the Applicant may have for his safety arising from the uncertain security situation in the Occupied Territories, or in (town) in particular, as required by paragraph 91R(1)(a) of the Act. The Applicant also referred to an incident in which he had been humiliated at an Israeli army checkpoint but I do not accept on the evidence before me that the impact of the security measures in the Occupied Territories on the Applicant amounts to persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Act.
These findings, as with the previous ones, were tersely expressed, and could have been given fuller explanations. However, I consider that they reflected no misapprehension as to the applicant’s claims, nor as to the relevant principles or sources of law.
Generally, I have been unable to conclude that the Tribunal’s reasoning is affected by any jurisdictional error.
The applicant’s grounds of review
I have separately addressed above all arguable issues of jurisdictional error in the Tribunal’s reasons and procedures, since these were not clearly raised in the applicant’s application and amended application and he made no written nor oral submissions.
His original application contained the following grounds:
i)The Refugee Review Tribunal erred in law in relying on wrong source of information namely independent evidence available to the Tribunal but did not reflect the truth.
ii)The Tribunal on one hand accepted that Muslim-Christian tension in the occupied territories is minimal and failed to outweigh our severe circumstances.
iii)The Tribunal failed to understand our explanation and argument that the information before RRT (which we did not see) does not reflect the situation on the ground. RRT erred in law in misinterpreting the impact of the security measures on myself and my brother amounts to persecution involving “serious harm” as per 91R(1) of the Act.
I consider that the complaints made in the first two of these grounds and the first sentence of ground three present arguments only against the merits of the Tribunal’s reasoning, in particular the weight it has given to the US report and its failure to accept the truth of all the applicant’s claimed history. I am unable to identify jurisdictional error arising from these matters.
Ground 3 also complains that that the Tribunal misinterpreted s.91R when making its concluding finding that the humiliating incident at the Israeli check-point did not involve “serious harm” within s.91R(1)(b) of the Act. The alleged error is not explained by the applicant, and I am unable to detect any jurisdictional error arising from this finding of the Tribunal.
The applicant’s amended application has the following grounds:
i)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 Christian.
ii)The Tribunal was under obligation to determine that the applicant was at risk of persecution should he return to Palestine and as he was persecuted before his departure.
iii)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 purpose of s.91R(1)(b).
iv)The Tribunal misunderstood the applicant’s evidence and erred in law as it was not open on the evidence before it to make the finding it made based on his oral evidence.
v)The copy of the transcript hopefully will lead the Honourable Court to understand how the evidence took place and how the decision by the Tribunal was reached contrary to the facts and evidence given.
vi)The Tribunal failed to understand the actual situation in Palestine and the seriousness of the reasons which led the applicant to depart the country.
vii)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
i)The procedures that were required by the Migration Act to be observed in connection with the making of the decision were not observed.
ii)The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the dated information without any investigation.
iii)The Tribunal failed to take a relevant consideration into account in exercising its power to determine the applicant as a refugee.
iv)The Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances and consequences of the claim.
v)The decision by the Tribunal is not justifiable by the evidence used in the decision.
vi)The decision by the Tribunal is totally unreasonable.
The contentions of jurisdictional error in these grounds are not particularised in any meaningful way, and I have been unable to give them any substance, beyond the matters I have discussed above. I consider that the Tribunal did identify and address the applicant’s refugee claims, and can find no jurisdictional error in how it did this. It plainly did consider whether the applicant has a well-founded fear of being persecuted for a Convention reason if he returned to his home in Palestine. I have read the transcript of the applicant’s hearing, and can identify no procedural or other error. The applicant was not required to be invited to comment in writing on the general country information relied upon by the Tribunal (see s.424A(3)(a)), and its contents and potential significance were fairly discussed with the applicant at the hearing (c.f. SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63). I consider that the undeveloped concerns of the applicant as to how the Tribunal decided his refugee claims are no more than complaints about how it has decided their merits.
For the above reasons I consider that the Tribunal’s decision is a privative clause decision, and the application must be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Smith FM.
Research Associate: Michael Abood
Date: 15 February 2007
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