SZIFG v Minister for Immigration
[2007] FMCA 65
•15 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIFG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 65 |
| 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 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZIFE v Minister for Immigration [2007] FMCA 64 |
| Applicant: | SZIFG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 281 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 281 of 2006
| SZIFG |
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 older 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 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 arrived in Australian with his brother in July 2005, and lodged his separate protection visa application on 11 August 2005. It explained why he left Palestine to seek protection in Australia, as follows:
I left the country with my parents who were able to obtain a visa for myself and my brother, (name), to save our lives or being killed or from killing any of those bastards called “Alaqsa Martyrs Troops” also known as “Kataeb” a Muslim terrorist group, who are causing problems, and in particular, who persecuted my brother and I because of our strong religious Catholic beliefs and because our successful business which was established by my father, who work for over 22 years, hard to make our future. My father spent a lot of money and was successful in bringing us to Australia as we left the country on 30 June 2005 by taxi and left Jordan on 2 July 2005.
I am proud to belong to the Catholic Church in (village)and during our celebration for New Year a serious conflict between us and the Muslims erupted when they said to us “fuck your cross and fuck your Virgin Mary etc”. As I was personally was told by my father since I was young that I am stubborn boy and would not tolerate things, when I heard this abuse I responded and then the problems started on 31 December 2004.
I honour my religion and my principles and I cannot see myself able to go back to (the village)any more as I was hiding and forced to do so by my parents to avoid any further catastrophic events. The Rebels chased me and my brother, (name), and I strongly feel that if I return they will know how to persecute me.
These people have no morals, they do any awful actions including stealing, harassing people, killing, kidnapping all in name of Islam and Muslims.
These people can harm me and I can also harm them but there are too many of them. They do not obey the law of the country. They claim to hate Israel and Christians and defend the mosque and Islam but their behaviour does not reflect any of this. The President of the Palestians, Abou Mazen, cannot control them and because he does not pay them wages their income is from stealing.
I hope that the officer will interview me to explain the circumstances properly because it is very difficult to put in writing what has happened to my brother and I and to our business, especially we are here in Australia and we have been assisted by Aunty B… who can understand us, but there will be problems when going into details and talking about names.
I look forward to be interviewed as soon as possible.
The applicant did not explain what the “problems” were which started on 31 December 2004, but he referred to being “chased” by “the Rebels” and being in hiding “to avoid any further catastrophic events”.
The same delegate who decided the older brother’s visa application decided the applicant’s application on 6 September 2005, but gave different reasons. These reflected the fact that this applicant clearly presented his religious affiliations as the reason for fearing obscurely indicated harms. He referred to a US State Department report for 2004 on Israel and the Occupied Territories, and said:
Having considered the aforementioned, I accept that there is a palpable level of tension between the minority Christian community and the Muslim population. I accept that the applicant has experienced significant abuse because of his religion. The area has seen a significant increase in the number of Christians leaving the region because of this tension. I also accept that the Palestinian Authority does not have significant resources at its disposal to provide protection to minority groups such as Christians. Nonetheless, I consider that for the reasonably foreseeable future, the situation faced by the applicant would not result in him facing harm amounting to persecution. The country information above indicates that generally speaking, there are reasonably harmonious relations between the Muslim and Christian communities. The applicant has not provided any independent country information to suggest otherwise.
On review, the applicant did not submit any written material to the Tribunal, but attended a hearing on 22 November 2005, which was held immediately prior to the hearing in his brother’s matter. An Auscript transcript is in evidence. I rejected an informal transcript which was not properly authenticated and contained argumentative material.
The applicant told the Tribunal that thieves had broken into a shop which had been opened for the brothers by their father, that everything was stolen, and a ransom was demanded from the insurance company. His evidence was unclear about the dates when this happened, but he said that it was well known that this was done by the Alaxa Martyr Brigade.
The applicant also told the Tribunal of “another problem”. He said:
Interpreter: On the fifth day in this year, in the New Year we were praying in the Church, we were celebrating the Christmas. The Alaxa Martyr Brigade came to our place in the village and they stayed on the door of our church and they tried to make fun of our religion and we tried to approach them and we asked them what they want and they say the F word to Jesus or any Christian and there was trouble at that time, even beating and since the 1st of January the trouble has been sorted out and then I went home at midnight and when I woke up in the morning my dad told me there is young people who are looking for you and they left a phone number here for me to ring them as soon as I wake up and I rang them, I had to ring them and for my surprise four young people with guns and they told me either you come with us in the car or you tell us who beat that young man and I answered them, I said I cannot answer you or tell you about the whole village that has participated and for five minutes only, during five minutes there came four buses from a neighbouring village came to our place and they fired their arms in the air to make us fear.
I fled, reach home and then they followed me inside my home and they hit my father, they beat my father on his side, on his butt you can say, member and people has to take them outside the place where we live and take them a little bit further away form our place and the next day in the afternoon some people came and said the problem has been sorted out and I received some threats that should I go to any main road I will be shot, I will be gunned down and my father had to take me to my aunt or my uncle’s home in Jerusalem, me and my brother; he took us there and we went to Jerusalem for protection. They cannot reach us there because of the Israeli army in the way but if we go to Ramalla or somewhere else they will come after us and I stayed there in Jerusalem for one month until I came here and they didn’t even came back to my village.
The applicant maintained that the incident at the church occurred on New Year’s Eve, and was questioned about the subsequent attack on the family home. In the course of this, the Tribunal clearly alerted the applicant to a concern that his account was “very unconvincing” and that it might decide that he was not telling the truth (see page 13 of the transcript). The applicant also became vague and contradictory as to the period which he had spent in Jerusalem after the incident.
As in the older brother’s hearing, the Tribunal put to the applicant information which it took from a lengthy US State Department 2005 report on “Israel and the Occupied Territories”. In particular, it invited him to comment upon two sentences: “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 was not correct, and that “there is racism; they saw the Christian people are better than them so they try to make a problem to harass them.”
The Tribunal’s statement of reasons carefully set out the applicant’s claims in his visa application and at the hearing, and referred to the country information. 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.
The Tribunal addressed the applicant’s claims in a different sequence than it addressed his brother’s claims. However, its reasoning was consistent with the interpretation I gave to its reasons concerning the brother (see SZIFE v Minister for Immigration [2007] FMCA 64).
The Tribunal first considered the theft of the stock from the applicant’s shop. It recognised that the applicant claimed that this occurred for reasons of his religion, as a Christian. However, it found:
I accept that the stock from their … 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 knew that the spare parts were of value. I do not accept that the Applicant and his family were denied a remedy for reasons of their religion. The Applicant said at the hearing before me that their claim against their insurance company was still before the courts.
The Tribunal then considered whether “the relevant Convention nexus” could be “found in the failure of the State to protect an applicant from persecution by non-State agents” because “the failure is for one or more of the five Convention reasons”. It referred to Khawar’s Case, and found against such a reason. It held:
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. … The fact that the governmental institutions in Palestine remain weak does not mean that the Palestinian Authority condones the persecution of Christians or discriminates against them in terms of the protection it provides.
For the same reasons which I gave in the brother’s matter, I do not consider that the Tribunal’s consideration of this applicant’s claims in relation to the theft from his shop, and any failure of State protection in relation to that matter, showed any misconception of the Convention definition, nor any failure to address a necessary issue.
The Tribunal then examined the claimed attack on the applicant’s home in the Christmas incident and his seeking refuge in Jerusalem. It made findings which leave no ambiguity, declining to accept the whole of this part of the applicant’s claims. It said it “found his evidence in relation to this incident unconvincing”. It did not accept that he hid with relatives in Jerusalem for any period, nor that “he genuinely fears that he will be killed or otherwise persecuted for reasons of his religion if he returns to his home in (his village).”
The Tribunal concluded by considering the position generally of Christian Palestinians in the Occupied Territories. It said:
I prefer the independent evidence to the Applicant’s evidence to the extent of any inconsistency because I consider that it is more likely to be reliable…I do not accept on the evidence before me that there is a real chance that the Applicant will be persecuted for reasons of his religion if he returns to his home (village) now or in the reasonably foreseeable future.
The Tribunal also referred to a complaint by the applicant about restrictions on movement as a result of Israeli security measures. It said:
I do not accept on the evidence before me that the impact of these security measures on the Applicant amounts to persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Act.
The Tribunal’s reference to the US State Department report repeated its adoption of an opinion that
Muslim-Christian tension is minimal and that the few instances of Muslim-Christian violence have related to social or inter-family conflicts rather than religious disputes.
As in the brother’s matter, I was left unclear as to the import of the second half of this finding. However, it is clear in this matter that the distinction drawn in the report as to the reasons for “Muslim-Christian violence” did not affect the basis upon which the Tribunal rejected the applicant’s refugee claims. In this matter, the Tribunal’s reasoning was clearly based upon a complete refusal to accept the credibility of the applicant’s claimed history of Muslim violence and threats following the Christmas incident. I can see no jurisdictional error affecting its decision.
Notwithstanding that the Tribunal gave independently reasoned decisions in each case, the applicant and his brother have filed identical originating applications and amended applications. They both attended the hearing before me, but submitted no written or oral submissions to explain any argument.
I have been unable to identify an argument of substance in the documents filed by the applicant, and can only repeat my responses to the same documents which I gave in my judgment in the brother’s matter.
The original application contained the following grounds:
i)The RRT 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 RRT on one hand accepted that Muslim-Christian tension in the occupied territories is minimal and failed to outweigh our severe circumstances.
iii)The RRT 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 91(R) 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 Israeli security measures 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.91(R)(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 twenty-eight (28) 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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