SZLWD v Minister for Immigration and Citizenship

[2008] FCA 1683

FEDERAL COURT OF AUSTRALIA

SZLWD v Minister for Immigration and Citizenship [2008] FCA 1683

Migration Act 1958 (Cth), s 424A(1), s 424A(3)
Federal Court Rules, O 62, r 40C(4), Item 43H Sch 2

SZLWD v Minister for Immigration & Anor [2008] FMCA 791 upheld
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, (2000) 74 ALJR 405 followed   

SZLWD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1184 of 2008

FOSTER J
10 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1184 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLWD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	10 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent fixed in the sum of $2,600.00. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1184 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLWD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	10 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 8 July 2008 (SZLWD v Minister for Immigration & Anor [2008] FMCA 791) in which her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 28 November 2007 and handed down on 11 December 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the first respondent) to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of Lebanon who arrived in Australia on 4 November 2006.  On 22 December 2006 the appellant lodged an application for a protection visa with the relevant Commonwealth Department which was then called the Department of Immigration and Multicultural and Indigenous Affairs. 

3. A delegate of the first respondent refused the application for a protection visa on 20 March 2007.  On 2 April 2007 the appellant applied to the Tribunal for a review of that decision.

4. Before the Tribunal, the appellant claimed to have a well-founded fear of persecution from members of a Sunni extremist group who are opposed to members of the Syrian Ba’ath Party in Lebanon.  He also claimed that he feared harm from Sunni extremists and some members of the Lebanese community because he is an Alawi Muslim and Alawis are perceived to be pro-Syrian sympathisers.  The appellant claimed that he joined the Syrian Ba’ath Party in Lebanon in March 2002.  He claimed that in March 2006 his father, the leader of the Tripoli Branch of the Syrian Ba’ath Party, was abducted by a Sunni militant group and held in detention for three weeks.  He claimed that his father was interrogated and beaten severely.  The appellant claimed that, after this, his home was monitored by Sunni militants.  He said that he then fled with his family to the Akkar region where his family is now located. 

5. He claimed that he feared harm if he were to return to Lebanon and that the Lebanese authorities would not be able to protect him. 

6. The Tribunal accepted that the appellant and his father may well have been members of the Syrian Ba’ath Party.  The Tribunal did not, however, accept that the appellant was an office-bearer or an active member of that Party.  The Tribunal found that, at most, he was a call up member.  The Tribunal did not accept that the appellant’s father had been kidnapped, mistreated or held in detention for a period of time in March 2006, as his father had retired from the Party in 1997 and there was no plausible reason advanced for the alleged kidnap. 

7. The Tribunal did not accept that the appellant or members of his family had been targeted by Sunni extremists because of their Syrian Ba’ath activities, as the appellant’s actions in remaining in Lebanon and continuing to work there were not consistent with the claim that he feared being kidnapped.  The Tribunal concluded that the evidence before it indicated that the appellant had not been previously harmed and that the independent country information suggested that Ba’ath Party members have not been targeted or harmed for political reasons.  Accordingly, the Tribunal concluded that the appellant would not face any harm should he return to Lebanon.

8. The Tribunal also considered whether the appellant faced any risk of harm by reason of being an Alawi Muslim.  The Tribunal had regard to violent clashes between Sunnis and Alawites in January 2007 in Tripoli.  However, the Tribunal found that these clashes were not the result of systematic and discriminatory conduct targeted at Alawites, but rather a manifestation of serious factional and sectarian differences in the Lebanese nation.  The Tribunal also found that, based on the independent country information before it, the Alawites were not persecuted in Lebanon for reasons of their unorthodox Islamic belief.  The Tribunal was not satisfied that the appellant faced a real chance of persecution if he were to return to Lebanon in the reasonably foreseeable future.

9. The appellant advanced five grounds in the proceedings which he brought in the Federal Magistrates Court in support of his application to overturn the Tribunal’s decision.  Ground 1 was that the Tribunal misunderstood the appellant’s claims and did not apply the law properly.  Ground 2 was that the Tribunal failed to rely on proper independent information and that the Tribunal failed to put to the appellant adverse information as to how he and the Alawites in Lebanon have been subjected to systematic and discriminatory conduct.  Ground 3 was that the Tribunal failed to provide to the appellant a real opportunity to submit written information to the Tribunal.

10. Ground 4 was that the Tribunal failed to ask itself the question: “What if I am wrong?”  The appellant contended that the Tribunal was obliged to consider the information before it and put to the appellant for comment any doubts which it had.  Ground 5 was that the Tribunal failed to consider the appellant’s circumstances as belonging to a particular social group. 

11. As to the first ground, the Federal Magistrate held that the Tribunal had understood the claims made by the appellant and fairly considered them.  The learned Federal Magistrate considered those claims in the context of the appellant’s oral evidence, as well as the independent country information.  Her Honour concluded that the Tribunal had put to the appellant all of the concerns which it had about his evidence and had carefully considered his responses to the concerns put to him.

12. Ultimately her Honour was satisfied that the Tribunal’s findings were open to it on the evidence before it and that a fair reading of the Tribunal’s decision made it clear that the law had been correctly applied to the findings made by the Tribunal. 

13. As far as Ground 2 was concerned, the Federal Magistrate found that the information referred to by the appellant and relied upon by the Tribunal, was information about a class of persons to which the appellant belonged and was not information specifically about the appellant. Such information is specifically excluded from the obligation contained in s 424A(1) by s 424A(3) of the Migration Act 1958 (Cth) (the Act). Similarly, as far as Ground 3 was concerned, the Federal Magistrate found no breach of s 424A(1) of the Act because it was the unsatisfactory nature of the appellant’s evidence that led to the Tribunal’s rejection of his claims, not any failure on the part of the Tribunal to provide to the appellant a fair opportunity to be heard or to take proper account of the information which it had.

14. The Federal Magistrate found that the Tribunal had not had regard to any information that enlivened the s 424A(1) obligation.

15. As far as Ground 4 was concerned, the Federal Magistrate found that, in the circumstances of this case, the Tribunal had no obligation to consider the “what if I’m wrong” test, finding that the Tribunal’s decision did not suggest any doubt as to the rejection of the appellant’s claims.  Her Honour held that it was open to the Tribunal to prefer the independent country information over the appellant’s evidence. 

16. As to Ground 5, her Honour found that there was no suggestion that a valid claim arose on the evidence and material before the Tribunal of a fear of persecution by reason of both the appellant’s membership of the Ba’ath Party and his being an Alawite.  Her Honour held that the findings of the Tribunal in this regard were open to the Tribunal on the evidence before it.

17. In summary, the Federal Magistrate found that the Tribunal had complied with its obligations under the statutory regime in making its decision and dismissed the appellant’s Application before her. 

18. The appellant filed his Notice of Appeal in this Court on 29 July 2008.  The Grounds of Appeal specified in that notice were as follows: 

    “1.Her Honour failed in spite of identifying country information by the Tribunal to establish and accept the applicants well founded fear of persecution.

    2.The Tribunal failed to understand the persecution of the Alawites.

    3.The Tribunal was obliged to consider the (what if I am wrong) because the events took place in Lebanon and the dangerous situation would have led to accept the applicant’s claim in full.”

19. The appellant has appeared before me in person, and has made oral submissions to me today.  He has done so through an interpreter.  In those oral submissions he has advanced two, or perhaps three, matters in support of the grounds set out in his Notice of Appeal. 

20. The first was a submission to the effect that, contrary to the Tribunal findings, the appellant did have a well-founded fear of persecution should he return to Lebanon.  He put to me that there had been an incident which occurred about three months ago in which a number of Alawites had been killed by a Sunni attack. 

21. His second broad submission seemed to be directed to establishing the proposition that the Tribunal had failed to consider that the appellant had a religious claim on account of his being an Alawite and had only considered that he had a political claim. 

22. The third matter which the appellant advanced concerned the role of Mr Christopher Rogers who, for some time in the history of this matter, had acted for the appellant in respect of his dealings with the first respondent and the Tribunal. 

23. What was sought to be put under this third general submission was not entirely clear but, doing the best that I can, it seemed to me that it was as follows.

24. The appellant had faxed a handwritten letter to the Tribunal at 6.52 pm on 28 November 2007 in the following terms:

    “I [the appellant] would like to request all the materials related to my application form including my CDs and papers as I am going to change my legal representative, therefore all the informations are needed.”

25. The appellant then requested that this material be sent to his home address. 

26. The Tribunal signed the decision made in respect of the appellant on 28 November 2007. 

27. On 29 November 2007 notification of the handing down of that decision on 11 December 2007 was sent to Mr Rogers who, according to the records of the Tribunal, remained as the legal representative of the appellant.  The notification was also sent to the appellant apparently on 5 December 2007.

28. It appears that the appellant is contending that, in light of his handwritten letter of 28 November 2007, no notification should have been sent to Mr Rogers on 29 November 2007 and the fact that the Tribunal sent such a notification on that day was a “mistake”.  It was not clear to me what, according to the appellant, flowed from this so-called mistake.

29. I now turn to deal with each of the submissions made by the appellant to me today in support of the Grounds of Appeal advanced by him in his Notice of Appeal. 

30. The first matter concerned the additional incidents between Alawites and Sunnis of three months ago in the context of the broader ground that the Tribunal had failed to consider and accept the appellant’s well-founded fear of persecution. 

31. In my view, the Tribunal did fairly consider the evidence advanced before it on the question of the appellant’s fear of persecution, and dealt with it appropriately.  Furthermore, the learned Federal Magistrate did not commit any jurisdictional error in her Reasons for Judgment delivered on 8 July 2008 when she came to deal with the grounds of appeal advanced before her which captured this ground.  

32. In any event, in my view, it is not open to the appellant to raise in this appeal facts and circumstances which occurred three months ago since that material post-dates the critical date.  That date is the date when the Tribunal came to decide the appellant’s Application for Review which is December 2007.

33. In my view, therefore, the first submission made by the appellant should be rejected. 

34. The second matter related to whether or not the Tribunal had considered both a religious and political claim.  In my view, it is quite clear from the Tribunal decision that it did consider both claims.  Therefore, its decision was not infected by jurisdictional error on this point and the learned Federal Magistrate’s decision (insofar as it dealt with this point) was also not infected with jurisdictional error.

35. Both Grounds 1 and 2 really seem to involve a contention that the learned Federal Magistrate should have conducted a merits review of the Tribunal’s decision.  This is the very thing which the Magistrate could not do (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, (2000) 74 ALJR 405 at [67]).

36. The third point concerns Mr Rogers.  This is a new point.  It was not argued before the Federal Magistrate.  Her Honour could not have committed jurisdictional error in failing to consider it. 

37. However, it seems fairly clear that the appellant attended the hearing before the Tribunal and was given every opportunity to deal with the concerns which the Tribunal had and, indeed, with the proceedings generally.  It also seems likely that the handwritten fax dated 28 November 2007 was probably sent after the Tribunal’s decision had been signed, although before it was delivered.  In any event, the appellant became aware of the decision at about the time that the decision was delivered or very soon after.  He also completed the necessary formalities to change his contact details with the Tribunal on 11 December 2007.  He appears to have suffered no prejudice as a result of the facts and matters he put to me concerning Mr Rogers.

38. I am unable to see what relief could be granted to the appellant based upon the submissions which he has made and the evidence upon which he has relied in respect of Mr Rogers. 

39. In summary, it seems to me, therefore, that there is no error in the reasoning of the Federal Magistrate which can be reviewed by this Court.  Accordingly, I propose to dismiss the appeal with costs.

40. The first respondent seeks an order for fixed costs in its favour in the amount of $2,600.00 pursuant to O 62 r 40C(4) of the Federal Court Rules.  The first respondent did not give notice of this application to the appellant.  The appellant has raised the fact that he was not given notice of the first respondent’s fixed costs application before today but in the end has not asserted any prejudice by reason of not having been given prior notice of that application.   

41. The respondents are limited by the operation of that rule to the sum set out in Item 43H in Sch 2 to the Federal Court Rules which is $5,500.00 at the present time. 

42. Cases such as this do not warrant engaging the process of assessment of costs.  In the circumstances I will make the order sought so that I fix the costs pursuant to the rule which I have identified at $2,600.00. 

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:        14 November 2008

The Appellant appeared in person
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	10 November 2008
Date of Judgment:	10 November 2008