SZLDY v Minister for Immigration
[2009] FMCA 1140
•11 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLDY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1140 |
| MIGRATION – RRT decision – Lebanese applicant claiming fear of persecution by Hezbollah – disbelieved by Tribunal – no breach of s.424(2) – findings open on the evidence – no general duty on Tribunal to obtain translations or make inquiries – no jurisdictional error established ‑ application dismissed. |
| Migration Act 1958 (Cth), s.424(2) |
| Minister for Immigration & Citizenship v SZKTI [2009] HCA 30 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109 SZJHR v Minister for Immigration & Citizenship [2007] FCA 1901 SZLDY & Ors v Minister for Immigration & Anor [2008] FMCA 1684 SZLSW v Minister for Immigration [2008] FMCA 498 SZLSW v Minister for Citizenship & Immigration [2008] FCA 1321 |
| First Applicant: | SZLDY |
| Second Applicant: | SZLDZ |
| Third Applicant: | SZLEA |
| Fourth Applicant: | SZLEB |
| Fifth Applicant: | SZLEC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1837 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 11 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2009 |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The first applicant must pay the first respondent’s costs in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1837 of 2009
| SZLDY |
First Applicant
| SZLDZ |
Second Applicant
| SZLEA |
Third Applicant
| SZLEB |
Fourth Applicant
| SZLEC |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants are a family constituted by a father, his wife, and three children, who came to Australia in December 2006 on visitors visas. Other children remained in Lebanon, which is their country of nationality. They have relations here, and on 1 March 2007 they made an application for protection visas, apparently assisted by a local sister-in-law and Mr Toufic Laba-Sarkis. Only the father claimed to be a refugee, and I shall refer to him as ‘the applicant’.
His claims were set out in a statement attached to the application, and further documents were provided later to the Tribunal. The applicant attended a number of hearings of the Tribunal. Two hearings were held by the Tribunal as originally constituted, but at the first hearing a fully qualified interpreter was not available and, as was eventually established in this court, some material errors of interpretation occurred. The adjourned hearing held before the original Tribunal was never shown to have involved any flawed interpretation of evidence, and the present Tribunal properly had regard to it. However, based upon the flaws at the first hearing, Federal Magistrate Barnes remitted the matter on 18 December 2008 (see SZLDY & Ors v Minister for Immigration & Anor [2008] FMCA 1684).
Before her Honour, the applicants were represented by counsel instructed by Parish Patience Immigration Lawyers. The applicants continued to receive their solicitor’s assistance, when the matter was reconsidered by the Tribunal. A principal in that firm accompanied the applicant to a hearing held by the reconstituted Tribunal on 27 March 2009. He later received a recording of the hearing, and made various submissions in response to invitations to comment in writing. The Tribunal made a decision on 30 June 2009 affirming an adverse decision of the delegate which had been made on 10 April 2007.
The applicants then filed an application in this Court for judicial review. That application was brought by Parish Patience, and a solicitor from that firm attended the first court date. The application contained only one ground of review, contending jurisdictional error by reason of the Tribunal’s original acknowledgement letter failing to comply with formalities attaching to s.424(2) of the Migration Act. That ground invoked authority in this Court which at that time was divided, but which was laid to rest as a result of the High Court’s decision on 26 August 2009 in Minister for Immigration & Citizenship v SZKTI [2009] HCA 30. Federal Magistrate Raphael’s decision finding jurisdictional error in the acknowledgement letter was subsequently set aside by the Full Court (see Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109). The sole ground presented by the applicants’ solicitor therefore was shown to lack merit. The applicants’ solicitor did not file an amended application raising any additional grounds, but filed a notice of withdrawal on 25 September 2009.
The applicant appeared without representation at a show cause hearing on 7 October 2009. He applied to adjourn the proceeding to obtain further legal assistance, claiming that he had not received notice of his previous solicitor’s withdrawal. Although it was not apparent to me that there was any arguable ground of review, I decided to allow the applicant an opportunity to find further legal representation, if he could. I fixed the matter for a final hearing today, and I gave directions again allowing the filing of an amended application and additional evidence. However, the applicant did not file any additional documents, and attended today without legal representation, appearing to rely only on the original application.
Prior to today’s hearing, he wrote to the Court seeking the adjournment of the hearing, to allow him to obtain more time to find legal assistance. He attached a letter from the Legal Aid Commission of NSW indicating that it had refused legal assistance on the ground that his application did not fall within its funding arrangements with the Commonwealth, nor satisfy its merits test. The applicant asked the Court itself to find him legal representation, and at the start of today’s hearing asked me to adjourn the hearing for a “long time”.
However, I refused to grant a further adjournment. I considered that the applicant had already been allowed a reasonable time to procure legal assistance. I was not satisfied that there was any prospects of the applicant obtaining further legal representation, nor could I identify any arguable merits in the matter justifying a referral by the Court itself under Part 12 of the Federal Magistrates Court Rules 2001 (Cth). The applicant did not qualify for a belated referral under the free legal advice scheme, since he had commenced his proceedings with legal representation and, I assume, had received legal advice from those solicitors.
The hearing, therefore, proceeded today and the applicant then made a number of new points in relation to the Tribunal’s reasoning, which I shall address below. I shall first summarise the applicant’s refugee claims and how they were dealt with by the Tribunal.
The applicant indicated in his visa application that he came from a town or village in northern Lebanon, and was a Sunni Muslim. His original visa claims were that when he departed Lebanon in December 2006 he intended to return to Lebanon, and to resume his business in his home town, but circumstances changed and he was forced to stay in Australia because his life was now at risk in Lebanon. He referred to having a business which included operating a petrol station, as well as owning agricultural property, commercial property, and other business interests. He claimed that his family back in Lebanon advised him not to return, because of new demands made by Hezbollah, who wanted to acquire his petrol station because it was on the main road from Syria and was in a strategic position. This claim was explained by the applicant in his visa application, and subsequently to the Tribunal. It was claimed that after he had left Lebanon, Hezbollah started to burn tyres and demonstrate in front of his petrol station, and their demands had become stronger. He claimed not to have had fears before leaving Lebanon, and to have had a return ticket.
In the course of the hearings in the Tribunal, the applicant made new claims to fear Hezbollah and persecution on various Convention grounds, arising from circumstances occurring before he left Lebanon. A number of such claims were made over time, including that the applicant had attacked Hezbollah when telephoning into a TV show after the July 2006 war, and that he was threatened by Hezbollah and accused of being a collaborator at that time. He also claimed that there were earlier threats going back to 2000 when he finished his army service, giving him reason to fear for his safety.
The applicant also claimed that after he came to Australia, his father had been questioned about the applicant by Syrian border authorities. He claimed that the Syrian authorities “asked the father many questions about the applicant and stopped him for about three hours. They said that they wanted to take the petrol station” (see the Tribunal’s statement of reasons at paragraph [72] in relation to this evidence at the second hearing, and paragraphs [92] and [98] in relation to the third hearing). At the third hearing, according to the Tribunal:
[98]The applicant was asked about the incident involving his father. He said when he was in Australia his father was briefly detained at the Syrian border and questioned. When his father found out that the applicant was wanted, his health deteriorated and he eventually had a heart attack. He was asked why his father was so upset now if he (the applicant) has had problems with Hezbollah long before he came to Australia. He said his father was aware of what was happening, but there was no one to talk to. His father is very attached to him and when he came here his father was very much affected and suffered from high blood pressure. He said his father’s heart attack had more to do with him (the applicant) being accused of being an Israeli collaborator. He was asked if anything else happened to his father at the border. He said his father was humiliated and also beaten.
At the third hearing, the applicant also referred to previous incidents where his car was smashed, and threats were made to kill him. He claimed that his problems with Hezbollah began after he left the army in 2000.
Both the Tribunal as originally constituted, and the second Tribunal put to the applicant a number of concerns arising from his presentation of his refugee claims and from country information, and the applicant and his various advisers and representatives made submissions in response.
The decision of the present Tribunal is lengthy, occupying 32 closely typed pages and 151 paragraphs, and appears meticulously to identify the evidence before the Tribunal, both documentary and oral. Certainly, I am not persuaded that the Tribunal’s recitation of evidence contains any material omissions or overlooking of elements in the applicant’s refugee claims.
In its findings and reasons, the Tribunal gave a number of reasons for concluding:
[121]The applicant did not impress the Tribunal as a truthful or reliable witness. In the Tribunal's view, his overall evidence casts serious doubt on the veracity of his claims and his credibility as a witness. In reaching this view, the Tribunal has had regard to the significant inconsistencies between the evidence he presented to the Department and his evidence at the review stage, inconsistencies between his claims and the country information before the Tribunal, the implausibility of significant aspects of his claims, as well as other reasons detailed below.
…….
[139]For all the above reasons, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The totality of his evidence shows a propensity to shift and tailor evidence in a manner which achieves his own purpose. In analysing the various inconsistencies in the applicant’s evidence throughout the process the Tribunal has been cognisant of the combined effect of the passage of time since the lodgement of the protection visa application and since the applicant was invited to give oral evidence before the first Tribunal, and the disadvantage to the appellant of having to repeat a detailed account of past experiences. The Tribunal accepts that while some aspects of the applicant’s evidence may have been affected, the inconsistencies and the fundamental shifts in the applicant’s claims, as outlined in the Tribunal's reasons, were such that cannot be explained by reference to delay and repetition of claims over a period of time. The Tribunal is of the view that the applicant has fabricated his claims and concocted evidence to achieve an immigration outcome.
I do not propose to examine each of the reasons given for these conclusions. In my opinion, the reasoning was clearly open to the Tribunal on the evidence before it. The applicant’s claims undoubtedly were embellished in the course of the proceedings before the Tribunal, and I consider that it was open to the Tribunal to find significant inconsistencies and implausibility in his evidence. I also consider that it was open to the Tribunal on the country information concerning the situation in Northern Lebanon, to find inconsistency in relation to the applicant’s claim to be at risk of persecution by Hezbollah in his home town.
The Court was at a disadvantage in today’s hearing because the applicant did not present his arguments in any written submission or amended application. Rather, he made a series of points without relating them to the documents in the Court Book. However, I am satisfied that I was able to understand his submissions insofar as they sought to raise possible jurisdictional errors. I am satisfied also that the Minister’s solicitor was able adequately to address the Court in relation to them.
The applicant complained that there were a number of documents in the evidence before the Tribunal which the Tribunal failed to consider. The first document to which he referred was a witness statement from Mr Laba-Sarkis, which was presented to the reconstituted Tribunal near to the end of the proceedings before that Tribunal. In this statement, Mr Laba-Sarkis referred to his observations on a recent visit to Lebanon.
The Tribunal undoubtedly was aware of his statement, and took its contents into account. It referred to it at paragraphs [111] to [112], considered its evidentiary weight at paragraph [141], and also referred to it in relation to the general country situation at paragraph [147]. In these paragraphs, it said:
[111]The applicant’s representative also submitted a supporting letter from a Mr Toufic Laba-Sarkis, dated 13 April 2009. In his letter Mr Sarkis stated that he visited Lebanon in January 2009 and during his stay, he visited the applicant’s village for one hour. He met the applicant’s father and children and witnessed the location of his petrol station which to “my knowledge seems to be located in a strategic position” and “has the largest capacity of petrol containers underground”. It is located on the main road which leads to Syria. He was “told” that [a location], which is only minutes from [the applicant’s village] is a Shi’a area. Mr Sarkis stated that he observed the area to be volatile and very close to Al Bared camp where the Lebanese Army took control of the militant Islamic fundamentalist group, Fatah Al Islam. He also observed the area leading to [the applicant’s village] to be mountainous and “was told that there are in the mountains terrorists who are not yet controlled by the Government”. He was told by the applicant’s father that his son is of importance and of interest to Hezbollah because of the petrol station’s location which is wanted by Hezbollah and that his son’s future is at risk until the Government is able to control the country and disarm Hezbollah and that there is nowhere in Lebanon to which his son could reasonably relocate and maintain his business activities. Mr Sarkis further stated that “it is the applicant’s father’s view that what happened in Tripoli and Jabal Mohsen may reoccur. The situation is tense between Alawi and Sunni and soon during the time leading up to the elections on 7 June 2009 and also Sunni and Shi’a are rivals and there is a warranted view that another conflict will erupt soon and that the applicant’s fear of persecution arises from Hezbollah as the applicant holds pro-Israel views and was taken as Israeli collaborator”.
[112]The submission noted that that Mr Sarkis would be available to give evidence to the Tribunal at a reconvened hearing, should this be considered appropriate by the Tribunal.
……..
[141]The Tribunal has also considered the written evidence provided by Mr Sarkis. The Tribunal notes that Mr Sarkis’ evidence is based on a visit he made to the applicant’s village in January 2009, which lasted for a mere one hour. Mr Sarkis conveyed his observations of the physical location of the applicant’s petrol station and relayed what in turn had been relayed to him about the applicant. Mr Sarkis’ evidence that he was told that [a location] is a Shi’a area and that the applicant is of interest to Hezbollah does not remedy the Tribunal's fundamental concerns with the applicant’s credibility and does not change the Tribunal's findings on that basis. The Tribunal has considered the applicant’s representative’s offer to make Mr Sarkis available to give oral evidence at a further hearing. However, having regard to Mr Sarkis’ written statement, the Tribunal is not convinced that his oral evidence would add value to the evidence he has already provided.
……..
[147]The applicant has fleetingly referred to the events in the Nahr el-Bared Palestinian refugee camp. The sources consulted by the Tribunal confirm that on 20 May 2007, clashes erupted between armed members of the radical Fatah al-Islam, an extremist Sunni outfit, and the army in Tripoli. Fighting was triggered when security forces raided an apartment in Tripoli following a bank robbery, and clashes spread to the nearby Nahr el-Bared camp after Fatah al-Islam fighters attacked and killed Lebanese soldiers at an army outpost. (Internal Displacement Monitoring Centre 2008, Lebanon: Displaced, again, IDMC website 23 July Apart from stating that he lived 10 minutes away from the camp – a matter which was also referred to in Mr Sarkis’ letter -, the applicant has provided no persuasive reason to indicate how these events relate to him and why he would be at risk of harm because of what occurred at the camp. The Tribunal is not satisfied that the applicant would be placed at a real risk of harm because of the events that took place at the Nahr el-Bared camp in May 2007.
I am not persuaded that the Tribunal’s consideration of Mr Laba-Sarkis’ statement reveals any jurisdictional error. The Tribunal was not generally obliged to seek additional evidence from Mr Laba-Sarkis, nor make further inquiries of him in the absence of any exceptional circumstance (see Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [1] and [25]). I am unable to identify any error of discretion by the Tribunal in relation to its powers of inquiry, including its discretion to take evidence from proposed witnesses (see SZJHR v Minister for Immigration & Citizenship [2007] FCA 1901). In my opinion, it was open to the Tribunal to form the view that Mr Laba-Sarkis’ written statement did not overcome the Tribunal’s concerns with the applicant’s own evidence.
The applicant then referred to a group of documents which had been forwarded to the Tribunal as first constituted by the applicant, in response to an invitation to comment in relation to adverse implications that might be drawn from his travel history. The invitation to comment appears at page 106 of the first Court Book, and the response and enclosed documents appear at pages 112 through to 122. The documents included some documents concerning the applicant’s return ticket; a letter of reference from the president of the Lebanese Community Council of NSW; a document whose authorship, dating and contents is entirely in Arabic, and was not accompanied by any translation provided at that time nor subsequently; and three documents in French and Arabic, which were similarly unaccompanied by any translations at that time or subsequently, but which appeared to concern some coronary treatment administered to the applicant’s father between February and May 2007.
The applicant contended that the evidentiary weight of these documents was not taken into account by the present Tribunal, and that to the extent that it did not have translations, it should have obtained them. The Tribunal did request translations from the applicant’s then representative, Mr Laba-Sarkis, (see Court Book page 148). However, translations were never provided by him, nor by the applicant, nor by the applicant’s subsequent solicitor.
In the present decision of the Tribunal there is reference to these documents:
[44]On 6 June 2007, the applicant responded and provided comments on the information put to him. He also stated that he will “talk about the full details at the hearing”. The following documents were attached to the applicant’s response:
· Statement from Orient Travel Centre stating that the applicant was booked and confirmed to return to Beirut on 26 February 2007, but on 24 February the applicant’s brother contacted the travel agent to cancel the booking “without any reason”;
· Copies of airline tickets in the names of the applicant and members of his family;
· Character reference from the Lebanese Community Council of NSW, which, amongst other things, stated that the Council is “aware of the issues of concern facing [the applicant] should he return to Lebanon”; and
· Untranslated documents in Arabic and French. The French documents were medical (cardiological) reports relating to [the applicant’s father].
[45]On 7 June 2007 the first Tribunal wrote to the applicant inviting him to provide translations of the untranslated documents referred to above. The first Tribunal also set out independent country information relevant to his claims, noting that it may discuss this information with him during the course of the hearing.
The Tribunal appears to have thought that the Arabic document related to the medical treatment of the applicant’s father, and I can find no evidence that it was ever told otherwise. The applicant today claimed that that document was in fact a statement of support from a mayor in Lebanon. Whether this is so remains unknown to the Court.
Also unclear is the extent that the applicant ever attempted before the Tribunal to relate the medical records concerning his father with his claim that his father had suffered a heart attack after being questioned at the Syrian border authorities. The Tribunal’s reference to his evidence at [98], extracted above, suggests that he claimed only that his father’s “health deteriorated and he eventually had a heart attack”.
It is possible that these untranslated documents might appear to have corroborated a heart condition, but not the claimed history and causal connection. There certainly appears to have been no direct evidence before the Tribunal pointing to any causation, even if this claim had been made by the applicant to the Tribunal.
It is correct that, apart from identifying their existence on the file, the Tribunal did not discuss any of these documents in its “findings and reasons”. However, I would not draw any conclusion that their evidentiary weight was overlooked, from the absence of express reference. This is because it appears to me that the Tribunal was left in a situation where their evidentiary weight was either obscure or uncontroversial.
The travel documents confirmed what the applicant had originally claimed, that he had left Lebanon without a fear of return and only developed it subsequently. It was unnecessary for the Tribunal to discuss that evidence in its findings and reasons, particularly since it accepted that he originally intended to return, and considered that this was inconsistent with the applicant’s later claims to have been persecuted before he left Lebanon.
As I have indicated, it was open to the Tribunal to have regarded the untranslated Arabic document as being either related to the medical documents or totally obscure in its contents. The Tribunal does not seem to have taken issue with the fact that the applicant’s father had a heart condition during 2007, and certainly addressed the claim that this was caused by a bad experience with the Syrian border authorities. The Tribunal said:
[135]Fourthly, the Tribunal found key aspects of the applicant’s evidence highly implausible. For instance, the applicant claimed at the second and third hearings that when his father went to Syria to visit relatives, he was stopped at the border, interrogated about the applicant and his whereabouts, threatened, detained for three hours and mistreated. Despite being asked about this incident at the second and third hearings, apart from referring to the close proximity of the Syrian border to his village, the applicant at no point made it clear as to why the Syrian border guards would be so intimately familiar with him and his circumstances to show awareness of the status of his petrol station and accuse him of being a collaborator. The applicant has made broad references to Hezbollah being a Syrian party and pointed to the military connections and transfer of weapons between Hezbollah and Syria. The Tribunal, however, finds highly unlikely that as a consequence of broad political and military links between Hezbollah and Syria, every organ of the Syrian state, including its border guards would have been so well-informed of the applicant’s circumstances to subject his father to interrogation in relation to the applicant’s whereabouts. The applicant did not claim that his father or any other member of his family was subjected to this form of interrogation or treatment by Hezbollah at his village or anywhere else other than the Syrian border. The Tribunal finds it highly unlikely that the applicant’s father would be interrogated in relation to the applicant’s whereabouts by Syrian border guards. These claims are neither credible nor plausible.
I am not persuaded that the Tribunal overlooked whatever evidence as to the existence of the father’s medical condition could be gleaned from the documents presented by the applicant in their untranslated state. I consider it more likely than not, that the Tribunal did properly consider the evidence to which I was referred by the applicant today, and I consider that its treatment of that evidence reveals no jurisdictional error.
Nor do I accept that the Tribunal was under any obligations itself to obtain translations of the documents which were not in English. It is well established that the Tribunal is under no such general obligation (see the authorities I cited in SZLSW v Minister for Immigration [2008] FMCA 498, upheld by Rares J in SZLSW v Minister for Citizenship & Immigration [2008] FCA 1321). In the present circumstances, it was open to the Tribunal to expect the applicant and his solicitor to present translations, if indeed the contents of these documents formed an important part of his case.
For the above reasons, I do not consider that any of the particular complaints made by the applicant in relation to the Tribunal’s handling of evidence has made out any jurisdictional error.
The applicant’s other submission to me today was that generally the Tribunal’s conclusions, and its rejection of his credibility in particular, involved “lots of mistakes”. These were not usefully particularised.
I do not consider that his complaints about the Tribunal’s decision have shown concerns that are more than concerns about the merits of the matter. As I have endeavoured to explain to the applicant, it is not the task of this Court to consider the merits of the Tribunal’s assessment of the evidence, where no jurisdictional error is raised.
The applicant also addressed the Court pointing to humanitarian aspects of his claims, and his claim to fear to return with his family to Lebanon. However, it is not the task of the Court to give consideration to whether the applicant and his family should be given permission to stay in Australia for humanitarian reasons.
For the above reasons, I am not satisfied that this Court has power to give the applicant the relief sought in the application. I consider the Tribunal’s present decision is not affected by jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 23 November 2009
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