SZJKY v Minister for Immigration - [2007] FMCA 271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJKY v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 271

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Lebanon – applicant claims fear of persecution because of his religion and economic hardship – credibility – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.24A, 91R, 424A, 474

Applicant:

SZJKY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2765 of 2006

Judgment of:

Scarlett FM

Hearing date:

22 February 2007

Date of Last Submission:

22 February 2007

Delivered at:

Sydney

Delivered on:

22 February 2007

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The title of the first respondent is changed to Minister for Immigration and Citizenship
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,000.00 and I will allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2765 of 2006

SZJKY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision by the Refugee Review Tribunal affirming a decision of a Delegate of the Minister not to grant the applicant a protection visa. The decision signed on 11 August and handed down on 31 August 2006. The applicant is a citizen of Lebanon who arrived in Australia on 11 July 2005 and applied on

25 January 2006 for a protection (Class XA) visa on 26 April a delegate of the Minister refused to grant the applicant a visa. The applicant applied to the Refugee Review Tribunal on 26 May 2006 seeking a review of the delegate's decision.
The application for review was not accompanied by any supporting documents. On 29 May the Tribunal wrote to the applicant acknowledging receipt of the application and advising him that he may be invited to attend a hearing of the Tribunal. On 6 June the Tribunal wrote to the applicant inviting him to attend the hearing at 9.30 am on 7 August 2006. On 7 August the applicant attended the hearing before the Tribunal and told the Tribunal that he did not wish to return to Lebanon because he is a Maronite Christian and that he would face economic hardship.
He said that he had sold and lost everything before moving to Australia to marry a Lebanese Australian woman whom he had met while visiting Australia in September 2004. The applicant claimed that he returned to Australia in July 2005 and realised that he did not get along with his fiancée and the engagement was broken off. The applicant told the Tribunal that the war between Lebanon and Israel was another reason why he did not wish to return to Lebanon.
He claimed that Israel was targeting everyone, Muslims and Christians. The applicant claimed that there are also military people and terrorists in Lebanon who are called militias who have been killing people in Lebanon. He said that there was a big conspiracy against Christians. The applicant also claimed that he fears another invasion of Lebanon by Syria and he feared its consequences. The Tribunal's decision record appears at pages 63 to 69 of the Court Book. The findings and reasons can be found at pages 68 and 69.
The Tribunal accepted that the applicant was a national of Lebanon and was sympathetic to his economic situation. However, the Tribunal did not accept that the applicant's financial situation was in any way Convention related. The Tribunal did not accept that the applicant's religion would put him at risk of being assassinated or harmed by any Muslim group or militia in Lebanon. The Tribunal did not accept the applicant's claims of another invasion of Lebanon by Syria and found that the applicant's evidence was extremely vague and noted that the applicant could not elaborate on the particular harm that he feared.
The Tribunal was satisfied that there would only be a remote chance that Syria would reoccupy Lebanon and that there was no real chance that the applicant would be harmed for a convention reason.

The Tribunal appreciated that the war occurring at the time between Israel and Lebanon had resulted in adverse economic conditions.

The Tribunal found however that there was no evidence for it to suggest that Israel was deliberately targeting Christians or Christian areas in Lebanon.
The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a convention reason. The applicant has sought judicial review of the Tribunal's decision and filed an application on

26 September 2006. In that application he seeks the following orders:
(1)The decision to be returned to the Tribunal and to be reconsidered and
(2)That the Department grant him a bridging visa until the decision is made by the Court.
The application contains the following four grounds which I will quote:
(1)The Tribunal failed to apply s. 91R that serious harm, such as ill-treatment and economic hardship will be suffered by me.
(2)The Tribunal failed to put information to me as to the harm I will suffer at the hands of the Syrians.
(3) My evidence w as straightforward and not vague.
(4)The Tribunal erred by stating that there is no real chance that I will be harmed as the result of Muslim and in particular Syria will reoccupy Lebanon. The Tribunal relied on information which does not apply to the current situation. The Tribunal overlooked my well-founded fear of persecution.
The applicant did not file any written outline of submissions but he attended Court today and made oral submissions. The submissions made by the applicant concentrated on factual matters and focused particularly on (1) the economic situation in Lebanon and (2) assassinations in Christian areas being carried out either by Syrians or Syrian sympathises. The applicant told the Court that he had raised those issues with the Tribunal.
I have read the outline of submissions prepared by Mr Smith of counsel on behalf of the first respondent Minister. In respect of the first ground, namely the claim that the Tribunal failed to apply s.91R of the Migration Act he submitted that that was not correct. He submitted that article 1A(2) of the Convention does not apply to persecution for one or more of the Convention grounds unless, amongst other things, it involves systematic and discriminatory behaviour. See sub-s.91R(1)(c).
The Tribunal found that the harm feared by the applicant was not for any Convention reason and it is submitted that even if the Tribunal did err in respect of whether the harm the applicant feared was persecution that the applicant could not satisfy the definition of a refugee.

Turning to the second ground it is submitted that the obligation to put adverse material to the applicant was dealt with by s.424A of the Migration Act. That section does not oblige the Tribunal to give the applicant particulars of information that is not specifically about him or another person.
There was no obligation on the Tribunal to put general information about Syria to the applicant. In any event it appears from page 67 of the Court Book that the Tribunal did put matters relating to Syria to the applicant. It is also submitted that the delegate's reasons were partly based on a finding that the situation in Lebanon regarding the Syrians have changed significantly and the applicant must have been aware that this was an issue in the Tribunal proceedings and was given an opportunity to address it by being invited to the hearing.
He has also submitted on behalf of the first respondent Minister that the third and fourth grounds raise only the merits of the facts found by the Tribunal and those are beyond the Court's jurisdiction. In oral submissions it was put that the Tribunal had dealt with issues of assassination amongst Christians in Lebanon but the Tribunal had found that people who had a particularly high profile were the targets of assassination, such as politicians and journalists.
The Tribunal found at page 68 of the Court Book that the applicant had no profile or characteristics that would make him a target of any such assassinations. Again, the applicant had referred to a number of matters relating to the situation more recently in Lebanon, but those things had occurred after the Tribunal's decision so it could not be considered. The applicant responded that the Syrian government is targeting Christian people in Lebanon and that assassinations extend to normal people and not just people with a high Syrian profile.
The Court does not conduct a merits review of the Tribunal decision. What that means is that the Court does not reconsider the factual evidence and make its own decision on the facts in substitution for that of the Tribunal. Factual matters are a matter for the Tribunal to decide. The Court cannot consider evidence of events that have occurred since the Tribunal decision was made. Whilst events may well have happened since the Tribunal decision if they occurred after the Tribunal decision they could not have been put to the Tribunal and the Tribunal could not have considered them. The Court cannot consider fresh evidence of factual situations.
I am not satisfied that the Tribunal failed to apply the provisions of s.91R of the Migration Act to the applicant's case. At page 65 of the Court Book the Tribunal set out the definition of persecution as it applies under s.91R of the Migration Act. The Tribunal's statement as to the effect in law of s.91R appears to me to be correct. It is also the situation that some of the harm put by the applicant, namely the economic situation, cannot be regarded as a convention reason for finding someone to be a refugee.
Again there is no breach of s.424A of the Migration Act. The Tribunal decision was based on the applicant's evidence and on some independent evidence about human rights and religious freedom in Lebanon. The Tribunal had no obligation to put to the applicant any specific information of a general nature about the Syrian government or there activities. That independent evidence was not specifically about the applicant or a class of person to which the applicant belongs and is protected by sub-s.24A(3) of the Migration Act.
The applicant's third ground is a challenge to the factual findings of the Tribunal that there was no real chance of harm if he were to return to Lebanon for a Convention reason. That ground is no more than an attempt at merits review and the Court cannot entertain it.

Similarly the applicant's fourth ground that the Tribunal relied on, on information that did not apply to the current situation and overlooked his well founded fear of persecution is no more than a challenge to the Tribunal's factual findings.
It follows that the applicant's four grounds for relief must be rejected.

I am mindful of the fact that the applicant was not legally represented. I have read through the Tribunal decision and supporting documents in order to make an independent assessment of whether any arguable case for a jurisdictional error is disclosed. There is no jurisdictional error that I can discern. It is hard not to have sympathy for the situation in which the applicant finds himself.
The Tribunal in fact accepted that economic hardship would occur across Lebanon and the Tribunal even considered the situation that with the fighting continuing, as it was at the time of the Tribunal hearing, that the applicant could face difficulty in actually returning to the area of Lebanon from which he came. Nevertheless, the inability at the time to enter Lebanon would not have made the applicant a refugee.
I am satisfied that there is no jurisdictional error which means that the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $4,000.00. The applicant has told the Court that he is not working and does not have the money to meet that. I see no reason to disbelieve that statement but it is not of itself a reason not to make a costs order in favour of the successful party. It is, however, a matter that should be taken into account when deciding whether to allow time to pay. I propose to make an order for costs in favour of the Minister but I will allow four months to pay.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 5 March 2007