SZLWD v Minister for Immigration
[2008] FMCA 791
•8 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLWD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 791 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal misunderstood the applicant’s claims or failed to apply the proper law – whether the obligations of s.424A(1) of the Migration Act 1958 (Cth) were enlivened – whether the Refugee Review Tribunal was obliged to consider the “what if I’m wrong test” – whether a claim arose on the evidence and material before the Refugee Review Tribunal of a fear of persecution by reason of the applicant’s membership of a political party. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 424A(3); 474; pt.8 div.2 |
| Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingam (1999) 93 FCR 220 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 |
| Applicant: | SZLWD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 29 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 16 June 2008 |
| Date of last submission: | 16 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2008 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Mr P. Snell, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 29 of 2008
| SZLWD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 November 2007 and handed down on 11 December 2007
The Applicant claims to be from Lebanon, a member of the Alawite Muslim sect and a member of the Lebanese branch of the Syrian Ba’ath Party since March 2002 (“the Applicant”).
The Applicant arrived in Australia on 4 November 2006 having departed legally from Beirut Airport on a passport issued in his own name and a visitor’s visa issued on 15 September 2006.
On 22 December 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by militant Sunni groups on the grounds of his political beliefs. The Applicant claimed that he joined the Lebanese branch of the Syrian Ba’ath Party in March 2002. The Applicant claimed that his father was a leader of Tripoli branch of the Syrian Ba’ath Party and that he was abducted in March 2006 “by a militant Sunni group and held in incommunicado detention for three weeks”, during which he was beaten severely and interrogated. Following his father’s alleged kidnapping, the Applicant claimed that his home was monitored by the Sunni militants. The Applicant claimed that he fled to the Akkar region where his family have now relocated. The Applicant claimed to be “a legitimate target of Sunni militants because of my membership of the Ba’ath party and because of my family’s long established Ba’athist profile.”
On 20 March 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate expressed doubts about the credibility about the Applicant’s claims and the genuineness of his alleged fear of Convention related persecution. The Delegate found that the Applicant’s claims were “uncorroborated…broad, vague and lacking in relevant detail.” The Delegate also found that, based on country information, any discrimination and harassment of pro Syrian supporters did not amount to persecution.
On 2 April 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application other than his passport. On 28 November 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 8 January 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a 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.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 18 April 2007, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to come to a hearing on 14 May 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
At the hearing the Applicant expanded upon his written claims. The Tribunal noted in its decision record that it discussed with the Applicant: the Applicant’s residence history in Lebanon and the residence history of his family; the Applicant’s employment history; the delay between the Applicant obtaining his travel documents and leaving the country; the Applicant’s and his father’s involvement with the Syrian Ba’ath Party; his knowledge of the Syrian Ba’ath Party; his Alawi beliefs and their connection to his claimed persecution; his father’s retirement in 1997; why his father’s abduction was not reported to the police; and, implausibilities in the Applicant’s claims.
The Tribunal noted that the Applicant claimed to have attended monthly meetings with “12 other responsible members” who would “prepare for conferences, send out invitations and prepare for demonstrations.” The Tribunal found the Applicant’s evidence about the activities of the twelve responsible members to be “vague and ambiguous”. The Tribunal found that the Applicant did not have a clear and detailed knowledge of the party organisation and structure.
The Tribunal noted the Applicant’s agreement that he had not been harmed in the past by reason of his pro Syrian political affiliations or his Alawi beliefs.
The Tribunal found that the Applicant was unable to provide details about the circumstances of his father’s kidnapping. Nor did the Tribunal accept the Applicant’s explanation as to why the kidnapping had not been reported to police.
The Tribunal identified country information to which it had regard, particularly in relation to the Ba’ath Party and the Alawi community in Lebanon. The Tribunal noted the close connection with the Alawites as pro Syrian. The Tribunal had regard to violent clashes in January 2007 in Tripoli between Alawites and pro government groups.
The Tribunal accepted that the Applicant is an Alawi Muslim and a citizen of Lebanon. The Tribunal accepted that the Applicant’s father was an active member of the Syrian Ba’ath Party until 1997 when he retired.
The Tribunal accepted that the Applicant “may have been an ordinary or “call up” member of the party.” However, the Tribunal did not accept that the Applicant was one of the twelve responsible members, nor that his father had been kidnapped, mistreated and detained in March 2006.
The Tribunal did not accept that the Applicant or members of his family had been targeted by members of an extremist Sunni group for the reason of their Syrian Ba’ath Party activities.
The Tribunal also found that the Applicant’s six week delay in departing Lebanon after the grant of his Australian visa in September 2006 and his continued work as a painter, not to be consistent with his claimed fear of persecution by Sunnis. The Tribunal had regard to the Applicant’s explanation for the delay which it rejected.
The Tribunal also considered whether the Applicant faced a risk of harm in Lebanon by reason of being an Alawi Muslim. The Tribunal noted that the Applicant had not claimed to have suffered past harm for reasons of his religious belief.
The Tribunal also had regard to the “violent clashes” between the Sunnis and Alawites in January 2007 in Tripoli. However, the Tribunal found that there was no information before it to suggest that “such conflict is the result of systematic and discriminatory conduct targeted at Alawites but rather a manifestation of serious factional and sectorial differences in the Lebanese nation.”
The Tribunal also found that the independent information did not suggest that Alawites were persecuted in Lebanon “for reasons of their unorthodox Islamic belief”, despite the perception that Alawites are pro Syrian.
The Tribunal was not satisfied that the Applicant faced a real chance of persecution if he were to return to Lebanon now or in the reasonably foreseeable future.
Accordingly the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an Arabic interpreter. The Applicant has participated in the Legal Advice Scheme.
The Applicant confirmed that he relied on the grounds contained in an application filed on 8 January 2008. The Applicant confirmed that he had filed no evidence or submissions in support of her application.
The grounds of the application are expressed to be as follows:
“1. The Tribunal misunderstood my claims and did not apply the law properly.
2. The Tribunal failed to rely on proper independent information and failed to put adverse information to me as to how the Alawites in Lebanon and me, personally, have been subject to systematic and discriminatory conduct involving serious harm for reasons of perceived proSyrian views.
3. The Tribunal failed to carry out its statutory duty in failing to give me a real opportunity to provide written information which was not found by the member.
4. The Tribunal failed to ask itself (what if I am wrong?) The Tribunal was obliged to consider the information and put any doubt to the applicant for comment.
5. The Tribunal failed to consider the applicant’s circumstances as belonging to a particular social group.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally.
Ground 1
Ground 1 was not supported by particulars or evidence.
Ground 1 does not disclose any error capable of review by this Court. The Applicant was unable to identify to the Court any claims that the Tribunal had misunderstood or any law that it had not applied properly.
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims made by the Applicant and considered them in the context of the Applicant’s oral evidence and country information before it.
The Tribunal accepted that the Applicant may have been a “call up” member of the Syrian Ba’ath Party and an Alawi Muslim. However, the Tribunal noted that the Applicant did claim to have suffered past harm from Sunnis by reason of his membership of either the Ba’ath Party or the Alawites. The Tribunal accepted that both were perceived to be pro Syrian.
The Tribunal did not accept the Applicant’s claim that his father was kidnapped, mistreated and detained by Sunnis, having regard to the lack of detail provided by the Applicant. In particular, the Tribunal noted that the Applicant’s father had retired from the party in 1997 and that there was no plausible reason for his kidnapping in 2006. The Tribunal rejected the Applicant’s evidence that the purpose of kidnapping the Applicant’s father was to obtain information on the Applicant’s activities with the Ba’ath Party. The Tribunal also rejected the Applicant’s explanation “that the police were ineffective” as the reason why the kidnapping was not reported to the police.
The Tribunal found the Applicant’s delay in departing Lebanon not to be consistent with his alleged fear of kidnapping and persecution by fundamental extremists.
As is apparent from the above, the Tribunal put to the Applicant concerns it had about his evidence and noted his responses. In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to its findings in concluding that it was not satisfied that the Applicant had a well-founded fear of persecution for a Convention related reason.
In the circumstances, a fair reading of the Tribunal’s decision does not support the Applicant’s contention in ground 1 that the Tribunal misunderstood his claims or failed to apply the proper law.
Accordingly ground 1 is rejected.
Ground 2
The information referred to in ground 2 is information about a class of persons of which the Applicant is a member and is not information specifically about the Applicant. Such information is specifically excluded from the obligations of s.424A(1) of the Act to give to the Applicant information that the Tribunal considers would be part of the reason for affirming the decision under review, by reason of s.424A(3) of the Act.
Accordingly ground 2 is rejected.
Ground 3
Ground 3 is not supported by particulars or evidence. It does not by itself disclose any error capable of review by this Court. If ground 3 is intended to refer to s.424A(1) of the Act, no such obligation arose. It was the unsatisfactory nature of the Applicant’s own evidence that led to the Tribunal’s rejection of the Applicant’s claims. There was no information to which the Tribunal had regard that enlivened the obligations of s.424A(1) of the Act.
Accordingly ground 3 is rejected.
Ground 4
Ground 4 was not supported by particulars or evidence.
A fair reading of the Tribunal’s decision does not suggest it had any doubt as to its rejection of the Applicant’s claims of a fear of kidnap and persecution by Sunnis by reason of being a “call up” member of the Ba’ath Party and an Alawite Muslim following the alleged kidnap of his father (see paragraphs 36 and 37 above).
In the circumstances, the Tribunal was not obliged to consider the “what if I’m wrong test” (Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingam (1999) 93 FCR 220).
Moreover, the Applicant’s credibility had been an issue in the Delegate’s decision and the Applicant should have been aware that his credibility was an issue before the Tribunal (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63). In any event, a fair reading of the Tribunal’s decision makes clear that the Tribunal put the concerns it had about the Applicant’s evidence to the applicant and had regard to his responses in considering whether the Applicant had a well-founded fear of persecution for a Convention related reason.
Otherwise, it was open to the Tribunal to prefer the country information to the Applicant’s evidence. A fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal failed to put to the Applicant matters about which it had doubt.
Accordingly ground 4 is not made out.
Ground 5
Ground 5 was not supported by particulars or evidence.
The Applicant contended that the Tribunal had failed to consider any danger to the Applicant by reason of being both a member of the Ba’ath Party and an Alawite.
The Applicant’s claims in his statutory declaration, declared 19 December 2006, in support of his protection visa application clearly stated that he claims persecution “on the Convention related grounds of Political Beliefs.” The Applicant also stated that he is a member of the Alawi Muslim sect.
A fair reading of the Applicant’s statutory declaration makes clear that the Applicant’s claims of a fear of persecution are because of his father’s alleged leadership of the Tripoli branch of the Ba’ath Party and the Applicant’s own membership of the Syrian Ba’ath Party since March 2002.
A fair reading of the Applicant’s statutory declaration suggests that the Applicant’s fear became manifest in March 2006 following his father’s alleged kidnapping by Sunnis.
A fair reading of the Tribunal’s decision does not suggest that the Applicant claimed a fear of persecution by Sunnis by reason of his cumulative membership of the Ba’ath Party and Alawites. At the heart of the Applicant’s claims, is a fear of persecution of Sunnis by reason of being pro Syrian.
A fair reading of the Tribunal’s decision makes clear that the Tribunal was aware that both the Syrian Ba’ath Party and Alawites are perceived to be pro Syrian.
However, in relation to the Ba’ath Party, the Tribunal had regard to country information before it that indicated that there was no systematic targeting “by government authorities or other groups in Lebanon” by reason of membership of that party. The Tribunal found that independent country information suggested that Ba’ath Party members had not been targeted for harm either for political reasons or pro Syrian views.
The Tribunal also had regard to country information that, whilst Alawites were perceived to be pro Syrian “by some members of the Lebanese community”, they were not subject to “systematic and discriminatory conduct involving serious harm” by reason of their perceived pro Syrian views.
The Tribunal found that, if the Applicant were to return to Lebanon, he would not “face harm for reason of his Ba’ath Party membership, activities or associations with his father” or because of a “perception that as an Alawite he is pro Syrian.”
The Tribunal made clear that, in its view, the Applicant did not claim to have a fear of persecution by reason of being an Alawite Muslim in Lebanon, however, considered such a claim in any event.
A fair reading of the Applicant’s written claims and the Tribunal record of his oral evidence does not suggest that a claim arose on the evidence and material before the Tribunal of a fear of persecution by reason of both his membership of the Ba’ath Party and being an Alawite (NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [58]-[63]).
At the heart of the Tribunal’s affirming the decision under review was its failure to be satisfied about the genuineness of the Applicant’s claims of a fear of persecution by Sunni extremists.
As stated above in these Reasons the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; had regard to all material provided in support; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 7 July 2008
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