SZLAZ v Minister for Immigration
[2008] FMCA 6
•29 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLAZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 6 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no denial of procedural fairness demonstrated – Tribunal only required to consider the applicant’s claims in the context of his country of nationality, not in the context of another country in which he wished to live but in which he had no residency rights – review of Tribunal’s fact finding not available in judicial review proceedings – Tribunal’s discretion did not miscarry when it did not allow further time to submit documents. |
| Migration Act 1958, ss.36, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZLAZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2138 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 December 2007 |
| Date of Last Submission: | 11 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2138 of 2007
| SZLAZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Syria who was born in Lebanon. He claims fear of persecution in both countries by reason of his imputed political opinion. He alleges that while in Lebanon he was asked by Lebanese Intelligence to be an informant against Syria and his refusal subsequently led to him being banned from working in Lebanon. He also alleges that in Syria he was taken aside by Syrian Intelligence and asked to spy for Syria in Lebanon. The applicant arrived in Australia on 10 November 2006.
The applicant claims to fear persecution in Syria and Lebanon because of his imputed political opinion and membership of a particular social group in Lebanon.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
26 March 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 148 – 154). Relevantly, they are in summary:
a)the applicant is a citizen of Syria who was born in Lebanon. From 1994 to 2005 the applicant lived and worked in Dubai. He returned to Lebanon in February 2005 in order to apply for Lebanese citizenship. Shortly after his return, the Lebanese Prime Minister Rafiq al-Hariri was assassinated. The applicant was unable to obtain citizenship because of the change of Lebanese policy towards the naturalization of Syrian citizens;
b)the assassination also led to the applicant being interrogated by Lebanese Intelligence. They asked the applicant to spy on their behalf against Syrians in Lebanon, even though he told them that he had no connection with any political side in Lebanon and had “no-one in Syria”. The applicant said that all Syrians in Lebanon were asked to co-operate with Lebanese Intelligence against Syria;
c)the applicant refused and the Lebanese Intelligence officer detained him and placed him on weekly reporting conditions. He was also banned from working in Lebanon. His inability to work was also tied up in the new limitations placed on Syrians in Lebanon in the wake of the al-Hariri assassination;
d)the applicant travelled to Syria in 2006. While there, he was taken aside by Syrian Intelligence and asked to spy for Syria in Lebanon. In return, the applicant was offered payment and assistance with staying in Lebanon. The applicant variously said that the reason he was approached by Syrian Intelligence was because of his “personality”, his fluency in Lebanese Arabic and his claimed fluency in English;
e)the applicant was given a month to think about the demand. He was told to report to “Branch 211” after a month. He failed to report to the Syrian Intelligence at the end of the month and they now seek to punish him for failing to follow their wishes;
f)the applicant returned to Lebanon in early 2006 but re-entered Syria and stayed at large there before departing for Australia. Even though he had failed to contact Syrian Intelligence the applicant was able to depart legally because he paid a bribe to clear his computer record which previously stated that he was required to report to Syrian Intelligence; and
g)the applicant claimed that he could not return to Syria because he feared that Syrian Intelligence might learn that he had been contacted by the Lebanese Intelligence and persecute him, presumably inferring that his refusal to spy for Syria was motivated by a loyalty to Lebanon that was traitorous to Syria.
At the end of the Tribunal hearing, the applicant asked the Tribunal for an extension of time to produce evidence of his unsuccessful attempt to apply for Lebanese citizenship. The Tribunal refused the extension on the ground that it accepted the applicant’s claims about trying to become a naturalised Lebanese. The Tribunal also refused the applicant’s request to provide more detail as to the date of his arrival in Lebanon in February 2005, noting that it accepted that the applicant arrived in Lebanon before the assassination of Prime Minister al-Hariri.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal gave no weight to the difficulties which the applicant had encountered in obtaining Lebanese citizenship following the assassination of Prime Minister al-Hariri as they involved matters which were relevant to Lebanon which was not the applicant’s country of nationality and in which he claimed no residency rights. The Tribunal concluded that such matters had no Convention-related relevance to the applicant’s claims in relation to Syria;
b)the Tribunal nevertheless considered that the applicant’s claims to have been pressured to spy for Lebanon did have relevance to his claim to fear possible persecution by Syrian authorities should those alleged discussions with the Lebanese authorities be discovered by the Syrians;
c)the Tribunal was prepared to accept that the applicant and other Syrian nationals in Lebanon around the time of the assassination of al-Hariri were questioned, perhaps even at some uncomfortable length, by Lebanese officials. The Tribunal accepted that such treatment would have felt discriminatory and even persecutory to a person in the applicant’s circumstances. However, the Tribunal found that none of the applicant’s evidence credibly supported the applicant’s claim that he was continually harassed in Lebanon after the initial interrogation and in Syria, the applicant’s country of nationality. As such, the Tribunal ultimately gave no weight to the applicant’s claims about having been interrogated in Lebanon in relation to the al-Hariri assassination;
d)the Tribunal did not accept that the applicant was ever asked by Lebanese Intelligence to spy on other Syrians, noting that:
i)the applicant’s evidence about being included in such a network was unconvincing, inconsistent and fanciful;
ii)the Tribunal found the applicant’s evidence about being asked to spy for Lebanon against other Syrians was inconsistent with evidence of the general effort by the Lebanese at the time to reduce the presence of Syrians in Lebanon as they were not trusted by the Lebanese people or government;
iii)the Tribunal did not accept that the applicant’s limited visa status in Lebanon or his ban from work had anything to do with his refusal to spy for Lebanese Intelligence because the applicant himself gave evidence that such restrictions applied generally to Syrian nationals in Lebanon after the assassination of the Prime Minister; and
iv)the Tribunal found it far-fetched that Lebanese authorities would demand that the applicant spy for them when he was not even allowed, on the basis of his nationality, to be a working resident in Lebanon;
e)accordingly, the Tribunal did not accept the applicant’s claim about the possibility of Syrian authorities discovering that he was courted in any way by Lebanese Intelligence. As such, the Tribunal was not satisfied that the applicant had well-founded fears of persecution in Syria for reasons of his claimed contact with Lebanese Intelligence;
f)the Tribunal did not accept the applicant’s claim that he was asked to spy for Syria, noting that it was so implausible as to be fanciful. The Tribunal noted that:
i)the applicant gave inconsistent evidence about whether he was coerced into working for the Syrians or whether he was allowed a month to think about the offer;
ii)the applicant gave vague, unconvincing and what the Tribunal considered to be improvised reasons as to why the Syrians singled him out for the job;
iii)the applicant undermined his own evidence by saying that the Syrian Intelligence still had to test him for suitability;
iv)the applicant’s whole account struck the Tribunal as concocted; and
v)the applicant was able to depart Syria with no impediment at all;
g)the Tribunal did not accept the applicant’s explanation of being able to depart Syria legally because he paid a bribe to clear his computer record on the Syrian Intelligence database, noting that the Tribunal found this account to be “fanciful”;
h)the Tribunal found that the applicant would not attract negative attention from Syrian authorities for reasons of having family and social contacts in Lebanon, noting that:
i)the applicant did not claim that he would do so; and
ii)the applicant was able to return to Lebanon after entering Syria in early 2006; and
i)overall, the Tribunal found the applicant to be an unreliable witness.
Proceedings in this Court
The grounds of the application were as follows:
1. RRT erred in law – denial of procedural fairness.
2. Failed to address all my claims.
3. Failed to ask itself the correct question.
4. Failed to accept new evidence to support my claims.
At the hearing the applicant raised a further asserted ground of review, namely that the Tribunal erred by proceeding to make its decision when he had asked for more time to put material before it.
Dealing with each of these grounds in turn:
Denial of procedural fairness
This allegation is not particularised but, by its terms, suggests a breach of those provisions found in div.4 of pt.7 of the Act. Section 422B codifies the natural justice hearing rule in relation to the matters dealt with by the sections in div.4 of pt.7. The sections in that division which generally attract attention in matters such as these are ss.424A and 425 and they do appear to be the only sections of any potential relevance to this application. Even so, it is not apparent that the Tribunal breached any of the sections in div.4 of pt.7.
As to s.424A, the only information relied upon by the Tribunal in reaching its conclusion to affirm the decision of the delegate was information contained in the applicant’s claim to the Minister’s department and in his evidence at the hearing held by the Tribunal. None of that information attracted the operation of s.424A(1). The conclusions which the Tribunal drew from that information were that the applicant’s evidence was unconvincing, inconsistent and fanciful as regards the core of his claims, mainly that he had been invited by both the Lebanese and the Syrian intelligence organisations to spy for them. Conclusions of that sort are not “information” as that word is understood in the context of s.424A: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190. As a result, no breach of s.424A is disclosed.
As for s.425, the issues determinative of the applicant’s claim were, judging by the Tribunal’s decision record, discussed with him at some length during the course of the Tribunal hearing. The essence of his claim was the interaction he said he had had with the Lebanese and Syrian intelligence organisations. Those claims were the focus of the applicant’s evidence to the Tribunal and the Tribunal’s questioning of him at its hearing. Other Tribunal findings, such as that the applicant would not attract negative attention from Syrian authorities for reasons of having family and social contacts in Lebanon and his ability to depart Syria legally, were subsidiary findings which were not determinative of the application. Consequently, no breach of s.425 is disclosed.
Tribunal failed to address claims
This allegation is also unparticularised. A consideration of the facts considered by the Tribunal and the findings that it made upon those facts, set out above at paragraphs [6] and [8], reveals that the Tribunal was aware of the applicant’s allegations concerning his pursuit of Lebanese naturalization, the hostility of Lebanese authorities to Syrian nationals, the invitations he received from the Lebanese and Syrian intelligence organisations and his consequent alleged fears.
It may be that, in this ground, the applicant alleges that the fears he expressed in relation to Lebanon were not given appropriate attention. However, the applicant was not a Lebanese national and had no rights of residency in that country. The Tribunal was required to address his claims in the context of his actual country of nationality, namely, Syria.
One of the criteria for a protection visa is that the applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Convention: s.36. The relevant portion of the Convention was accurately set out by the Tribunal at CB 147 in the following terms:
[a person who] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Here, as the applicant’s nationality was Syrian, it was in the context of that nationality which his claims to fear persecution had to be assessed. Consequently, to the extent that the applicant may be alleging that inadequate attention was given to his concerns regarding Lebanon, such concerns do not demonstrate jurisdictional error on the part of the Tribunal.
In the written submissions he filed in Court on 11 December 2007, the applicant submitted that the Tribunal had failed to consider a claim based on his membership of a particular social group. The group was people who had been deprived of working rights in Lebanon. However, for the reasons already given, whatever the discrimination the applicant may have suffered in Lebanon, it did not amount to Convention-related persecution. Moreover, the particular social group of which the applicant claims membership merely directs attention to the discrimination claimed, not the basis of the discrimination. Consequently, the applicant has failed to identify membership of a particular social group which might, in other circumstances, have required consideration by the Tribunal.
Tribunal failed to ask itself the correct question
In his written submissions the applicant identified the question he alleged to be the correct question as being:
what would happen to me if I go back to Lebanon, how could I support myself and….why I was the only one who was unable to receive Lebanese citizenship the same as my parents and why I was deprived of my work permit…
Again, the issue of the discrimination suffered by the applicant in Lebanon was not relevant for the Tribunal to consider as he was of Syrian not Lebanese nationality. Consequently, this allegation does not demonstrate jurisdictional error on the part of the Tribunal.
Tribunal failed to accept new evidence
This ground is also unparticularised and the expression “failed to accept” may be interpreted in two ways. It may be interpreted to mean that the Tribunal gave no weight or rejected the substance of evidence supplied to it by the applicant. However, as the finder of fact, such decisions were properly within the Tribunal’s power. It is for the Tribunal to determine what facts it accepts or rejects and what weight it gives to evidence placed before it. Unless the Tribunal erred in relation to a jurisdictional fact, which is not the case here, the Court cannot review the Tribunal’s findings of fact or substitute its own views on such matters for those of the Tribunal.
The second way this ground may be interpreted is that the Tribunal refused to receive further evidence which the applicant wished to place before it. However, as the applicant’s written submissions states:
Even though the Tribunal accepted fresh statement before handing down of decision but failed to take into account its value …
it does not appear that such an interpretation is what the applicant asserts.
Tribunal failed to allow the applicant extra time
The applicant gave evidence that, at the Tribunal hearing, he asked for additional time in which to put material before the Tribunal for its consideration. The applicant said that the Tribunal’s response to his request was that it already had enough documents, did not need any more and that it did not have time to wait for the documents. When cross-examined, the applicant conceded that he had not specifically raised with the Tribunal the document which he would have liked the Tribunal to consider, which is Exhibit 1 in these proceedings. At the time of the hearing, that document had not arrived from overseas although it had been requested by the applicant. In connection with the applicant’s request for additional time, the Tribunal’s decision record states:
The Applicant asked the Tribunal for an extension of time in order to provide evidence of his unsuccessful attempt to apply for Lebanese citizenship. The Tribunal considered the request but refused to grant a specific extension, on the grounds that it accepted his claims about trying to become a naturalised Lebanese and about his lack of success due to policy changes after the al-Hariri assassination. The Tribunal put to the Applicant that it was required to focus on his country of nationality, Syria.
The Tribunal carefully asked the Applicant to indicate what other documents he might like to obtain for submission in this matter. In reply, it was suggested that he might be able to provide more detail as to the date of his arrival in Lebanon in February 2005. The Tribunal again declined to offer a specific extension, saying that it accepted that he arrived in Lebanon from the UAE before al-Hariri was assassinated.
The Tribunal informed the Applicant that he could submit material for consideration right up to the date of the handing down of a decision in this matter. (CB 153)
As noted above, the applicant said that the request he made to the Tribunal for extra time was made in general terms; he did not specify to the Tribunal that he wished to put forward the document which is now Exhibit 1.
The applicant’s submission is, in effect, that the Tribunal erred in the exercise of its discretion when deciding not to allow the applicant additional time to put material before it. However, the applicant did not say to the Tribunal that he wished to put before it the document which is now Exhibit 1. The Tribunal was not put on notice of any particular documents which the applicant wished to put before it other than those referred to in the quotation in paragraph [24] above. Given that the Tribunal accepted the facts which those documents would have been used to prove, its discretion did not miscarry in not granting additional time in respect of those documents.
In relation to any other documents, which were unspecified as to content and significance, the Tribunal advised the applicant that he could submit them at any time up to the handing down of its decision. The applicant took advantage of this opportunity and did provide the Tribunal with further documents. The fact that he had not received the document which is now Exhibit 1 was a matter entirely unknown to the Tribunal. The applicant did not request an extension of time in order to put this document before the Tribunal, notwithstanding that his evidence is that he had sought it from overseas prior to the Tribunal hearing.
In the circumstances, the evidence does not disclose that the Tribunal’s discretion miscarried when it declined to extend time to provide further documents.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 29 January 2008
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