SZLEI v Minister for Immigration - [2009] FMCA 290

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLEI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 290

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether failure to understand or to consider claims or to comply with s.425 of the Migration Act.

Migration Act 1958 (Cth), ss.424A, 425

NARD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 27
QAAT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 299
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152
SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652
SZILQ v Minister for Immigration & Citizenship [2007] FCA 942

Applicant:

SZLEI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1869 of 2008

Judgment of:

Barnes FM

Hearing date:

18 March 2009

Delivered at:

Sydney

Delivered on:

18 March 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms L Clegg

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1869 of 2008

SZLEI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal signed on 16 June 2008 and handed down on 26 June 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Lebanon, arrived in Australia in October 2006. In December 2006 he applied for a protection visa. The application was refused and the applicant sought review by the Tribunal in April 2007. He attended a Tribunal hearing. The Tribunal, as then constituted, affirmed the delegate's decision in July 2007. The applicant sought review of the Tribunal decision in this Court. On 25 February 2008 the Court by consent set aside the Tribunal decision and remitted the matter to be determined according to law. The Tribunal as reconstituted invited the applicant to attend a further hearing, which he did. However, as indicated, the Tribunal affirmed the decision of the delegate.
In connection with his protection visa application the applicant's then migration agent provided a statement of his claims. Relevantly, these written claims were expanded upon in a written statement and translation provided to the Tribunal on 10 June 2008 after the Tribunal hearing. For convenience, I note that references to the Tribunal hearing are to the hearing conducted by the Tribunal as reconstituted.
In connection with his protection visa application, the applicant claimed to fear persecution in Lebanon for reasons connected with his former relationship as a Sunni Muslim with a named Shi’ite woman. He claimed that her family opposed the marriage because he would not convert to be a Shi’ite, notwithstanding that he and the named woman had commenced a sexual relationship and she had fallen pregnant. He claimed that he was met with anger and gunshots from her family, insulted and threatened that he must change his religious beliefs. He claimed that he had been reported to Syrian intelligence with false claims that he was a spy against Syrian activities in Lebanon. He was questioned and then decided to leave Lebanon and go to Kuwait. He also claimed that the woman had had an abortion and had been forced to marry a relative and that subsequently, after he resumed contact with her, her husband found out and divorced her. The applicant claimed that the woman’s brother had tried to contact him in Kuwait and had threatened him through his brother, again insisting that he convert to be a Shi’ite.
The claims made by the applicant were elaborated on in an interview conducted by the Department. As recorded in the delegate's decision, he also claimed that the woman’s family had told him that he had to join Hezbollah in order to marry her.
The Tribunal recorded what occurred at the hearing conducted in May 2007 by the Tribunal as originally constituted, including the claims by the applicant that he feared of persecution from both Hezbollah and from Syrian intelligence with whom his girlfriend's family was said to have connections and that Hezbollah had interrogated him. He claimed that his former girlfriend's brothers had threatened to kill him on the one hand but also that they had also demanded that he join Hezbollah when they asked him to convert to be a Shi’ite. At the second hearing he had claimed that when he went to discuss marriage plan with the woman’s family in 2001 her brother had stabbed him.
In its reasons for decision the Tribunal outlined in detail the evidence given by the applicant at the hearing it conducted in May 2008. It referred to issues it raised with the applicant and concerns it expressed about aspects of his evidence and his explanations. It recorded in particular that it put to the applicant its concerns about serious inconsistencies in his various accounts of his experiences and also the fact that he had not been seriously harmed after 2001, despite the fact that he could have been located.
The applicant submitted to the Tribunal that the inconsistencies resulted from the fact that his previous migration agent had not submitted a written statement he had prepared in Arabic to the Department. A complaint was also made to the Tribunal about poor interpreting in the past. The Tribunal gave the applicant three weeks to submit any response he wished to make to issues the Tribunal had raised including, if he wished a translation from Arabic of his original statement of claims.
In June 2008, after the hearing, the applicant submitted to the Tribunal a copy and translation of a Kuwaiti work permit and a good conduct certificate issued by the Lebanese authorities and also a copy and translation of his original statement of claims. There is no suggestion that the applicant provided further written submissions addressing the Tribunal concerns about inconsistencies and the other matters raised by the Tribunal in the hearing.
The applicant relied on a transcript of the Tribunal hearing filed in Court as an annexure to an affidavit of Mr Laba Sarkis, filed only two days before the hearing. Several pages of the transcript of the hearing were missing in the copy filed in Court and the copy served on the first respondent's solicitors. The missing pages were tendered as an exhibit by the applicant. The transcript of the Tribunal hearing has not been shown to be inconsistent with the Tribunal's account of what occurred in the Tribunal hearing.
The Tribunal summarised the written statement of the applicant, a matter to which I will return when considering the grounds for review. It referred to country information. In its findings and reasons the Tribunal accepted that the applicant was a Lebanese national but found that while the basic outline of the applicant's claims had remained consistent over time, it had formed the impression that various aspects of his claims had been embellished to support his claims for asylum. It gave as an example the alleged connection of his girlfriend's family with Hezbollah. This was said to have been variously stated. However the Tribunal found that there was no other evidence before it that this connection was actually used against the applicant, except insofar as he claimed it was the basis for some of the threats against him. The Tribunal also referred to the fact that the applicant had at times maintained that the woman’s family had told him he not only had to convert to Shi’ite Islam, but also had to join Hezbollah. It found that this had not been a consistent claim and that it appeared not to have been made in the applicant's original statement written in Arabic, a copy of which was provided to the Tribunal in June 2008.
The Tribunal also found that the applicant's evidence relating to key dates had been inconsistent and unreliable. It recorded that he had given various dates for matters such as when he met the woman, when she became pregnant, when he had a confrontation with her family and when he was questioned by Syrian intelligence.
Nonetheless, the Tribunal accepted the applicant’s claim that he, as a Sunni Muslim, had fallen in love with a Shi’ite woman and sought her hand in marriage, but was refused by her family because of his religion and his unwillingness to convert to Shi’ite Islam. While it accepted that the woman’s family may well have been Hezbollah supporters, it did not accept that the applicant was also asked to join Hezbollah when he was asked to convert or at any stage thereafter. It referred to country information in finding this claim to be inherently implausible, as Hezbollah appeared to have no shortage of willing supporters nor a wish to take reprisals against those who were not. It had regard to the fact that this claim was not made in the applicant’s Arabic statement or in the statement actually submitted with the protection visa application. The Tribunal found that this claim was not made until the first Tribunal hearing in May 2007, when the applicant seemed uncertain when the family had asked him to join Hezbollah. It rejected his claim that he was ever harmed or at risk from Hezbollah or from his girlfriend's family because he refused to join Hezbollah.
The Tribunal also had regard to inconsistencies in the applicant's evidence about whether his girlfriend became pregnant before or after he asked for her hand in marriage. It found this evidence highly inconsistent and hence unreliable. However it found that, whatever the sequence of events, it accepted that there was a violent altercation between the applicant and the woman’s family after she became pregnant and before he left for Kuwait in 2001. The Tribunal accepted that the applicant suffered some harm in that altercation, but observed that given that the woman’s family was extremely conservative, permission to marry had been refused and the applicant had made her pregnant, an extreme reaction might have been expected from her family. It had regard to the applicant’s evidence that he never thereafter saw the girlfriend or any member of her family again, even though he alleged that her brother came to Kuwait to see him but failed to do so.
The Tribunal addressed the applicant's claims about the girlfriend's family following him and monitoring him. It had regard to the absence of any such claim in his protection visa application, the claim in his Arabic language statement that after the physical confrontation the family contacted him and threatened to kill him and the claim he made in May 2008 that the family were following him and monitoring him. The Tribunal did not accept these claims because it found them to be inconsistent and vague. It found that if the family had seriously wished to avenge themselves on the applicant, they would have done so in the period following the violent altercation when, on the applicant's own evidence, the most they did was threaten him.
The Tribunal also found inconsistencies in the applicant's claims about when he was questioned by Syrian intelligence, which it detailed. It noted that on his evidence the questions had nothing to do with his girlfriend or her family and nor was he mistreated. It rejected his claim that the questioning was at the instigation of his girlfriend's family, preferring the explanation that the fact that he had been absent for so long in Kuwait had aroused the interest of Syrian intelligence.
On the basis that it was no more than assertion and that there had been limited and inconsistent information about the nature and frequency of any further contact with the girlfriend, the Tribunal rejected the applicant's claim that he maintained contact with her after 2001 and that this caused her to be divorced. Given the inconsistencies in his claims about whether he experienced any threats after he returned to Kuwait in 2001 and his concession when asked directly that he had not been contacted, approached or harmed by the family between 2001 and 2006, the Tribunal rejected his claim that he was subject to any threats by the family after he left for Kuwait in 2001, at least until a member of her family allegedly indirectly threatened him in Kuwait in 2005.
The Tribunal then considered but rejected the claim that the girlfriend's brother or any member of her family came to Kuwait to threaten or harm the applicant at any time, having regard to inconsistencies about when this occurred and the fact that the applicant continued at his place of work for some considerable time thereafter and nothing further happened. The Tribunal did not accept that the applicant was ever threatened or in any way harmed by the woman's family or by anyone else in Kuwait. It found that he fabricated this claim to strengthen his application for a protection visa. The Tribunal also rejected as unreliable and implausible the applicant's claim that he was threatened or harmed in Lebanon in October 2006.
The Tribunal reiterated the findings that while it accepted that the applicant was subjected to a knife attack in 2001 by a family member of the woman who had refused their permission for the applicant to marry her on the grounds of his religion, it did not accept that he was ever thereafter threatened or harmed by any member of the woman's family either in Kuwait or in Lebanon.
The Tribunal then addressed the specific bases upon which the applicant claimed to have a well-founded fear of persecution for a Refugees Convention reason finding that, since it had found that the applicant had not been harmed by anyone in the woman's family for several years, even though there was opportunity for this to happen both in Lebanon and Kuwait, it was of the view that it was mere speculation that the applicant would be seriously harmed by the family if he returned to Lebanon. It was therefore not satisfied that there was a real chance that he would be persecuted in a Convention sense by his former lover's family if he returned to Lebanon in the foreseeable future.
It addressed the applicant's claim to fear reprisals from Hezbollah or from the girlfriend's family on behalf of Hezbollah because he refused to join them. It had regard to its finding that there was not a real chance of serious harm to the applicant from a member of the girlfriend's family for any reason, the fact that the applicant had submitted no evidence he had been harmed or threatened with harm by any member or supporter of Hezbollah outside of the girlfriend's family and that there was nothing in the country information to indicate that Hezbollah took reprisals against people who did not support it. The Tribunal concluded that it was not satisfied that there was a real chance that the applicant would be persecuted in a Convention sense by any Hezbollah members or supporters if he returned to Lebanon in the foreseeable future.
Finally, the Tribunal considered the applicant’s claim that he would not get protection from the Lebanese police because his relationship with his girlfriend was considered a crime. The Tribunal referred to the fact that he had submitted no evidence that the family reported him or threatened to report him to the authorities for adultery and also that there was no evidence in human rights publications sourced by the Tribunal that men in Lebanon were punished for adultery. It noted that even if this were to be the case, any such punishment would be the result of enforcement of a law of general application in Lebanon and that there was no evidence before it that such a law was discriminatory in intent or impact on members of a group recognised by the Convention. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Lebanon.
The applicant sought review by application filed in this Court on 21 July 2008. He relies on an amended application filed on 30 October 2008. The amended application contains three grounds. The applicant also made oral submissions to the Court, taking issue with the Tribunal's alleged failure to understand his claims and asking rhetorical questions addressing the Tribunal findings in particular respects and its failure to be satisfied on particular issues.
The first ground is that the Tribunal misunderstood the applicant’s claim and “failed to confirm that protection in Lebanon is not available and that the political party in Lebanon persecuting [the applicant] are in power and could harm [the applicant] because of his religion.” However, as set out above, the Tribunal considered the applicant's claims on the various bases he put them at various times. It has not been established that the Tribunal failed to have regard to relevant considerations in the sense of failing to address a claim because it misunderstand an integer of the applicant's claims. In particular, as set out above, the Tribunal addressed the applicant's claims to fear his former girlfriend's family, Hezbollah and his fear that he would not get protection from the Lebanese police.
The Tribunal gave detailed reasons for rejection of his claims, largely on factual bases. Insofar as this ground refers to protection not being available, the Tribunal had regard to the applicant’s claim that he would not get protection from the Lebanese police because his relationship was considered a crime. It not only had regard to the fact that there was no evidence he had been reported or threatened to be reported for adultery, and no evidence that men in Lebanon were punished for adultery, but it also found that even if this were to be the case any such punishment would be the result of enforcement of a law of general application in Lebanon and that there was no evidence that such a law was discriminatory in intent or impact on members of a group recognised by the Refugees Convention. This ground is not made out.
It appears from the applicant's oral submissions that his concern is more generally that the Tribunal did not accept aspects of his claims. However this seeks merits review and merits review, as I endeavoured to explain to the applicant, is not available in this Court.
The second ground in the amended application is that the Tribunal breached s.425 of the Migration Act 1958 (Cth) “by failing to raise a determinative issue, namely the absence of a convention reason, arising in relation to the decision under review.” Reference is made to the decision of the High Court in SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152 in relation to the obligation on a Tribunal to put dispositive issues to an applicant. However in this case the absence of a Convention reason was not the basis for the Tribunal decision. As set out above, after considering the various aspects of the applicant's claims, the Tribunal found generally that it was not satisfied that the applicant had a well-founded fear of persecution in Lebanon. The applicant did not identify any other way in which there was a failure to comply with s.425 of the Act. While the transcript of the Tribunal hearing is before the Court, the applicant did not identify any aspect of that transcript relevant to this ground or that was such as to suggest that the Tribunal failed to raise determinative issues with him. This ground is not made out.
The third ground is that the transcript proved that the Tribunal failed to understand that his evidence at the hearing did not contradict the statement which was given originally in Arabic and that therefore the Tribunal did not have the power to attack his credibility. Insofar as this is a suggestion that it was not open to the Tribunal to make findings of fact or credibility findings, it is well established that credibility findings are a matter for the Tribunal par excellence (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405).

It appears from the applicant's oral submissions that issue is taken with the Tribunal findings in relation to inconsistencies and its comparison of the claims made by him in his Arabic statement and at other times. As indicated, in the hearing the Tribunal gave the applicant the opportunity to submit a copy of the statement which he said he had provided to his original migration agent. He did so and it had regard to the content of that statement.
In that respect, the applicant took particular issue with the Tribunal's failure to accept that he was also asked to join Hezbollah when he was asked to convert by his girlfriend's family or at any stage thereafter. That finding was based in part on the Tribunal's finding that such a claim was not made in the Arabic statement given to the applicant's adviser.
The applicant contended that he had in fact referred to Hezbollah on a number of occasions in his Arabic statement. However it is notable that the issue that the Tribunal was determining was not whether he mentioned Hezbollah, but rather whether he had made a claim that he was asked to join Hezbollah. The statement translated from Arabic does record that the applicant met his named girlfriend, a Shi’ite, whose family were members of Hezbollah in Lebanon in 2001 and that he asked for her hand in marriage, but states her parents refused him “... because I am Sunni and because her parents are Shi’ite and belong to Hezbollah”.
The applicant later referred in that statement to Hezbollah starting to look for him and claimed that he could not hide because of the power of Hezbollah and the strong ties of the family with Hezbollah. He claimed that because his relationship was a crime he could not obtain police protection and it was possible he would be persecuted, jailed, or even handed to the family or to Hezbollah to kill him.
However it was open to the Tribunal to find that the applicant did not claim in that statement that he was asked to join Hezbollah and hence to form the view, as set out above, that there were inconsistencies in the claims made by the applicant in that respect at various times. In particular it was open to the Tribunal to conclude that such a claim was not made at the time of the original protection visa application either in the statement prepared by the migration agent or in the translated Arabic statement made by the applicant.
The applicant also submitted that if the family were Shi’ite it followed that they would have asked him to join Hezbollah and that the Tribunal should have recognised this fact. However it is apparent from the transcript of the Tribunal hearing and the Tribunal reasons for decision that the Tribunal raised its concern with the applicant in relation to this aspect of his claims and gave him an opportunity to provide further submissions after the hearing. If he wished to make such a claim, it is a claim that he should have made to the Tribunal. The claims that he now makes in that respect do not establish jurisdictional error on the part of the Tribunal on the material before it at the time of its decision. It was open to the Tribunal, on the material before it, to reject this claim for the reasons which it gave.
Issue was also taken with the Tribunal's reliance in reaching this conclusion on country information about Hezbollah to which it referred in its decision. The applicant seemed to submit that the country information in fact supported his claim that he would have been forced to join Hezbollah.
The Tribunal recorded that it had evidence that Hezbollah had such wide support in southern Lebanon that generally forced recruitment did not occur and referred to the fact that while an opinion had been expressed that some people had been punished for not joining the group, no indication was provided of which individuals may have been punished for not joining Hezbollah and nor did the source of this opinion provide further corroborating evidence for his opinion. The Tribunal went on to refer to other sources of independent country information, including a reported lack of knowledge of any reports of Hezbollah reprisals against persons other than former South Lebanese Army members, including those who resisted recruitment in the organisation or disagreed with its objectives or policies.
It was open to the Tribunal on the material before it to reach the conclusion that it did. The weight to be given to particular items of independent country information is a matter for the Tribunal (see NARD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 27, and also see QAAT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 299) and the choice and interpretation of country information is a factual matter for the Tribunal alone (SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652). No jurisdictional error is established on the basis contended for in ground three of the application or by the applicant's oral submissions.
The applicant also suggested that the person who stabbed him in 2001 wanted to kill him. However, as set out above, the Tribunal accepted that the applicant had been involved in an altercation in 2001 and had suffered some harm but, given its findings about a lack of consequences or further action thereafter, it was not obliged to make findings as to the intention of the person who occasioned that harm.
The applicant appeared to submit that the Tribunal was obliged to put to him for comment matters raised by the material he provided to it after the Tribunal hearing. This is presumably a reference to the work permit, good conduct certificate and the Arabic statement and translation provided on 10 June 2008. Insofar as he contended that this information had to be put to him in writing (presumably pursuant to s.424A(1) of the Act), such information is within the exception in s.424A(3)(b) as information that the applicant gave for the purposes of the review (whether or not the current or previous version of s.424A is applicable in the circumstances of this case). The applicant gave the Tribunal a copy of the statement in Arabic and translation and the other documents.
Insofar as this might be said to raise a more general issue of whether the Tribunal was obliged to have a further hearing to put dispositive issues to the applicant as considered in SZBEL, that is not made out on the material before the Court. The further material put before the Tribunal by the applicant addressed matters raised at the hearing. It was open to the Tribunal to consider and make the adverse findings that it did. It has not been established that there was any unfairness in the Tribunal referring to this information. The applicant was put on notice in the hearing of dispositive issues, including the Tribunal's concern about significant inconsistencies as to when and what claims he made. It has not been established that this was a case in which a further hearing was required (see SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 per Buchanan J).
The applicant also sought to raise in oral submissions the issue of why the Tribunal did not have regard to the fact that he had left a desirable situation in Kuwait. However the Tribunal questioned the applicant extensively at the hearing as to his situation in Kuwait, the visas he held, his contract arrangements and his travel. If the applicant had wanted to raise such an issue it was open to him to do so either at the Tribunal hearing or thereafter. It was not incumbent on the Tribunal to ask the applicant the questions that he now seeks to raise.
More generally, insofar as the applicant's oral submissions take issue with the Tribunal's factual findings, factual findings are a matter for the Tribunal. No jurisdictional error has been established in the manner in which it made its findings. Insofar as the applicant sought to restate his claims to be a refugee, merits review is not available in this Court and his claims do not establish jurisdictional error on the part of the Tribunal.
Finally, for the sake of completeness, I note that the applicant's original application contained two grounds that were addressed in written submissions for the first respondent, as the solicitors did not appear to have a copy of the amended application. While the applicant sought only to rely on the amended application, as these matters were addressed by the first respondent in written submissions, I note that no jurisdictional error is established on the basis of the very generally expressed ground in the original application that the Tribunal misunderstood the applicant's claims. To some extent the applicant's oral submissions today appear to be intended to address that ground, rather than the grounds in the amended application but, as indicated, no jurisdictional error is made out on that basis.
The second ground in the original application is that the Tribunal failed to apply the law and recognise the applicant's fear of persecution on religious grounds and as belonging to a social group. This is not made out. This ground, like ground one in the amended application, appears to misconceive the basis for the Tribunal decision. Relevantly, the Tribunal considered the applicant's claims on the apparent assumption that the claims that he made were Convention-related, but did not accept as a matter of fact that he had a real chance of being harmed on his return to Lebanon and hence found that he did not have a well-founded fear of persecution in Lebanon on any basis.
As no jurisdictional error has been established the application must be dismissed.

RECORDED: NOT TRANSCRIBED

The applicant has been unsuccessful and the Minister seeks costs in the sum of $5,000. The applicant indicates that he did not know how he could pay this amount as he had no work, he had family obligations. He queried whether he might pay in instalments. He also raised an issue as to the fact that in the past he had a won a case and he had no costs. This may be a reference to the fact that when the first Tribunal decision was before the Court the matter was remitted by consent and the orders made on 20 August 2008 included an order that the first respondent was to pay the applicant's costs, if any. However what occurred in those circumstances is not of assistance in relation to the first respondent’s application for costs in these proceedings. The applicant's impecuniosity and family commitments are not reasons in this case for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent, although they may be matters to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate having regard to the nature of this and other similar matters.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 6 April 2009